W.M.M./A.A.R.P. v. Trump: The Fifth Circuit Defines “Invasion”
- Citation
- W.M.M. v. Trump, No. 25-10534 (5th Cir. Sept. 2, 2025) (Southwick, Carrillo Ramirez, JJ.; Oldham, J., dissenting); rehearing en banc granted Sept. 30, 2025; argued Jan. 22, 2026
- Court
- U.S. Court of Appeals for the Fifth Circuit
- Statute
- Alien Enemies Act, 50 U.S.C. § 21; 28 U.S.C. § 2241
- Holding
- Panel: AEA “invasion” requires military force directed by a foreign nation; the proclamation cannot stand on the present record. Vacated by grant of rehearing en banc; merits awaiting decision.
The Fifth Circuit’s September 2, 2025 panel decision in W.M.M./A.A.R.P. v. Trump was the first appellate ruling on the merits of the March 2025 Alien Enemies Act proclamation. Two of three judges agreed with the consensus building below: the proclamation could not be sustained because there was neither an “invasion” nor a “predatory incursion” in any sense Congress would have recognized in 1798 or now.
The majority opinion
Judges Leslie Southwick and Irma Carrillo Ramirez, writing for the panel majority, defined “invasion” with deliberate precision: “an act of war involving the entry into this country by a military force of or at least directed by another country or nation, with a hostile intent.” The definition has three elements. There must be a military force. The force must be acting at the direction of a foreign nation or government. The intent must be hostile, in the sense of military aggression rather than ordinary criminal violence.
The proclamation failed each element. Tren de Aragua is not a military force. There was no record evidence that the Maduro regime was directing TdA operations in the United States — indeed, the U.S. intelligence community had publicly disagreed. And the “hostility” alleged was the ordinary pattern of transnational criminal activity, not the kind of armed political violence the term was historically understood to denote. “A country’s encouraging its residents and citizens to enter this country illegally,” the panel wrote, “is not the modern-day equivalent of sending an armed, organized force.”
The opinion held that seven days’ notice would supply the constitutional minimum required by A.A.R.P., a slightly less demanding standard than the District of Colorado’s twenty-one days but well above the twenty-four hours the government had attempted at Bluebonnet.
Judge Oldham’s dissent
Judge Andrew Oldham wrote a 131-page dissent. He argued the political-question doctrine foreclosed Article III review of the President’s “invasion” finding; that the term “predatory incursion” should be read with reference to modern, not eighteenth-century, threats; and that the AEA, as an exercise of war powers, sat outside the ordinary constraints that govern domestic civil enforcement. The dissent is the most fully developed defense of the proclamation in any judicial opinion to date and is widely expected to provide the analytical framework for any government cert petition if the en banc court rules against it.
“A country’s encouraging its residents and citizens to enter this country illegally is not the modern-day equivalent of sending an armed, organized force.”
En banc rehearing
On September 30, 2025, the Fifth Circuit voted to rehear the case en banc and vacated the panel’s preliminary injunction. Oral argument before all seventeen active judges was held on January 22, 2026. As of this writing the en banc decision remains pending. Whatever the en banc court decides, the case is widely expected to reach the Supreme Court — either on the merits or, if the en banc court reverses, on the question of how the courts of appeals are to allocate the rule-of-law function between the political question doctrine and the textual limits of a 227-year-old statute.
Significance
For practitioners in the Fifth Circuit, the immediate practical effect of vacatur is limited: the underlying district-court injunctions in the constituent districts (N.D. Tex., S.D. Tex., W.D. Tex.) remain in force, and the September 2 panel ruling is no longer binding precedent. For everyone else, the panel opinion remains a textbook instance of textual originalism applied to executive authority claims, and the dissent supplies the most articulate counter-position the docket has produced. The Supreme Court will almost certainly have to choose between them.
Filed under The Alien Enemies Act. Published September 2, 2025 (panel); en banc rehearing pending.