Remember all that hubbub about the Alien Enemies Act (AEA) and the removal of Tren de Aragua (TdA) members?
No, I'm not talking about the J.G.G. case, over which D.C. District Judge James Boasberg has presided. I'm talking about the one that arose in Texas, and initially (no pun intended) involved A.A.R.P. (subsequently shortened to A.R.P. and replaced as the lead petitioner by W.M.M. so as to avoid any further mistaking the case for one involving retirees rather than immigration detainees); the one involving a mad scramble by ACLU attorneys to whip an order up from District Court Judge Wes Hendrix in response to their 12:34 AM emergency request and them running to the 5th Circuit and the Supreme Court when Hendrix didn't move swiftly enough for their tastes; the one where SCOTUS issued an extraordinarily odd midnight ruling on Good Friday 2025. Yeah, that one.
I'd invite readers to pull up a chair and prepare to feast on this latest turn of events, but I'm afraid y'all may go away hungry. Why, you ask? Read on...
The pretzel twists of how we got to this point in the case might lend themselves well to a second-year law school exam, but I'll try to keep it short and sweet:
- In March of 2025, President Trump invoked the AEA to remove TdA members from the U.S.
- Petitioners in this case filed suit in the Northern District of Texas seeking habeas relief.
- As alluded to above, the case swiftly proceeded to SCOTUS, which sent the case back to the 5th Circuit with two jobs:
- assess the petitioners' likelihood of success on their claim that the AEA did not authorize their removal;
- determine what process/notice was required before AEA removal.
- The 5th Circuit, noting that SCOTUS had told them to get to work and make it snappy, issued a per curiam order expediting the matter.
- But Judge James Ho, pushing back on the Supremes' seeming impatience, issued a deliciously spicy concurring opinion, in which he dished the memorable line: We seem to have forgotten that this is a district court — not a Denny’s.
A 5th Circuit panel did answer SCOTUS' queries — momentarily — in September of 2025. A 2-1 panel ruled that the administration couldn't use the AEA against the TdA petitioners because it hadn't shown the circumstances constituted an “invasion or predatory incursion” within the meaning of the statute, with Judge Andrew Oldham serving up an emphatic dissent contending that that determination belongs to the executive rather than federal judges. (The panel did find that the administration's revised notice procedures satisfied due process requirements).
I predicted at the time that the administration would petition for rehearing en banc — it did, and the 5th Circuit granted that petition, thereby vacating the panel opinion. En banc oral argument was heard in January 2026.
But while all of that was going on...the government removed all three of the named petitioners in this case under the Immigration and Nationality Act (INA), rather than the AEA (which, by the way, the Supreme Court had expressly left it free to do). So now, we hit our jurisdictional snag:
- Petitioners wanted an injunction preventing their removal under the AEA.
- They're already gone.
- They weren't removed under the AEA.
- An injunction against future AEA removal therefore can't provide them any relief.
Which leads us to Thursday's en banc decision from the 5th Circuit...dismissing the appeal for lack of jurisdiction because the case is moot.
Now, Judge Ho did offer up some additional food for thought with another concurring opinion. While he agrees the claims are moot, he believes the court could — and should — have decided the preliminary-injunction merits before dismissing. And his answer would have been a Trump win. Per Ho:
- the president's AEA determination warrants judicial deference;
- courts shouldn't substitute their judgment on whether the circumstances amount to an invasion/predatory incursion;
- the government's current seven-day notice procedure satisfies due process.
Nothing in the AEA indicates that the judiciary should question Presidential determinations regarding the war power. To the contrary, the Act expressly authorizes its use on a “public proclamation” by the President. Deference to the invasion determination is also especially appropriate given that the AEA empowers the President, not only where there is an ongoing invasion, but even if the invasion is only “attempted or threatened.” Judges are ill-suited to question such national security assessments by the President.
The Supreme Court confirmed this approach in Ludecke. The President had invoked the AEA against enemy aliens from Germany during World War II—a “declared war.” But active hostilities had already ended three years earlier. Germany had unconditionally surrendered. The Court nevertheless refused to second guess the President. After all, “[t]hese are matters of political judgment for which judges have neither technical competence nor official responsibility.” 335 U.S. at 170. It was not for the judiciary to “question a belief by the President that enemy aliens” had not “los[t] their potency for mischief.” Id. “Such great war powers may be abused,” but “that is a bad reason for having judges supervise their exercise.” Id. at 172. “The Founders in their wisdom made him not only the Commander-in-Chief but also the guiding organ in the conduct of our foreign affairs.” Id. at 173. So “full responsibility for the just exercise of this great power may validly be left where the Congress has constitutionally placed it—on the President of the United States.” Id.
Judge Oldham also weighed in with a bite-sized concurrence, referring back to and incorporating his prior 72-page dissent in the panel's September 2025 decision, and noting that while he'd prefer to decide the merits and deny the injunction outright, he'll live with the practical outcome here of denying it because there's no live party left to receive one.
To recap:
- SCOTUS told the 5th Circuit to answer the AEA question.
- A three-judge panel answered it against Trump.
- En banc rehearing wiped that answer off the books.
- The full court then lost jurisdiction before replacing it.
- And after this extraordinary procedural journey, the 5th Circuit now has no precedential merits ruling on whether Trump's TdA proclamation lawfully invoked the Alien Enemies Act.
I ended my article on Judge Ho's Denny's opinion with this:
One hopes that when the Circuit finishes addressing the matters the Supreme Court tasked it with, it will deliver a thoroughly delicious record and opinion for the High Court to gnaw on.
Now here we are, 15 months later, and after an extraordinary amount of judicial chewing, the 5th Circuit has ultimately served up...an empty plate.