Editor’s Note: This article was published as part of the inaugural edition of The Commonwealth Times and reflects events as reported at the time of the referenced news coverage.
The federal judiciary has fractured along lines not seen since the early battles over the Affordable Care Act, as judges in the Fifth, Ninth, Third, and D.C. Circuits have rendered mutually exclusive judgments on the legality of the Trump administration’s sweeping deportation campaign conducted under the authority of the Alien Enemies Act of 1798 — a statute born in the same political furnace as the Sedition Act and never before employed outside the theater of declared or congressionally recognized armed conflict. The result is a circuit split of extraordinary consequence, one that compels the Supreme Court to adjudicate not merely a question of immigration enforcement but the outermost boundary of wartime executive power exercised in peacetime.
The administration’s invocation of the Alien Enemies Act — first announced in March 2025 to facilitate the rapid removal of individuals it designated as members or affiliates of the Venezuelan gang Tren de Aragua — has since expanded dramatically in scope. By the summer of 2025, the Department of Justice had issued guidance broadening the categories of removable aliens to include nationals of Venezuela, as well as individuals from several other nations whom the administration characterized as presenting threats linked to transnational criminal organizations. Deportation flights, many conducted with minimal individualized review and in some cases routed through third countries including El Salvador, proceeded at a pace that immigrant-rights organizations described as unprecedented outside of wartime internment operations.
The legal architecture underlying these operations rests on a reading of the Alien Enemies Act that is, by any historical measure, novel. The 1798 statute, codified at 50 U.S.C. § 21, authorizes the president to detain and remove nationals of a hostile nation whenever there exists a declared war or a ‘predatory incursion’ against the territory of the United States. Its prior invocations — during the War of 1812, World War I, and World War II — were each tethered to congressionally recognized hostilities against sovereign nations. The administration’s position, articulated in filings by the Office of Legal Counsel and defended before multiple courts by the Solicitor General’s office, holds that the activities of Tren de Aragua and allied organizations constitute a ‘predatory incursion’ sufficient to trigger the statute’s authority, irrespective of whether the government of Venezuela is itself engaged in hostilities against the United States.
It was in the Fifth Circuit that the administration found its most receptive audience. A divided panel, ruling in January 2026 in Garcia-Mendoza v. United States, held two-to-one that the phrase ‘predatory incursion’ admits of a broader construction than its historical usage might suggest, and that the political branches possess plenary authority to determine when such conditions exist. Writing for the majority, Judge James Ho argued that the judiciary owes ‘maximal deference’ to the executive in matters of national security and immigration, and that the factual predicate for the president’s proclamation — the documented presence of Tren de Aragua operatives engaged in violent criminal activity on American soil — satisfied any justiciable threshold. The dissent, authored by Judge Irma Carrillo Ramirez, warned that the majority’s reasoning ‘unmoored the Alien Enemies Act from its textual and historical foundations’ and transformed it into ‘a general-purpose deportation authority limited only by the executive’s own characterization of threats.’
The Ninth Circuit reached the opposite conclusion with equal conviction. In Bolivar v. Department of Homeland Security, decided in February 2026, a unanimous three-judge panel held that the Alien Enemies Act cannot be lawfully invoked absent a declared war or an incursion attributable to a foreign government, and that the administration’s theory would render the statute’s carefully delineated triggers meaningless. Judge Michelle Friedland, writing for the panel, observed that ‘the separation of powers demands that a statute authorizing wartime measures be confined to wartime circumstances,’ and that permitting the executive to designate a criminal organization as the functional equivalent of a hostile nation-state would ‘collapse the distinction between law enforcement and the war power that the Framers regarded as essential to republican government.’
The Third Circuit, ruling in early March in a case styled Hernandez-Perez v. Attorney General, sided substantially with the Ninth, though on narrower grounds. The panel declined to hold that the Alien Enemies Act categorically requires a declared war, but concluded that the administration had failed to demonstrate that the activities of Tren de Aragua constituted a ‘predatory incursion’ within the meaning of the statute as historically understood. The court emphasized the absence of any congressional authorization or recognition of hostilities, and noted that the executive branch had not even attempted to invoke the more conventional authorities available under the Immigration and Nationality Act for the removal of individuals associated with criminal organizations.
The D.C. Circuit, for its part, added a distinct and complicating dimension. In Al-Rahmani v. Executive Office for Immigration Review, the court addressed the procedural rights of individuals subjected to removal under the Alien Enemies Act — specifically, whether those individuals are entitled to individualized hearings before an immigration judge, or whether the act permits summary removal upon a presidential proclamation. The panel held, two-to-one, that the Due Process Clause of the Fifth Amendment requires, at minimum, an opportunity for each individual to contest the factual basis for his or her designation as an alien enemy, including the opportunity to demonstrate that he or she is not in fact a national of the designated country or a member of the designated organization. The administration has maintained that the Alien Enemies Act, as a wartime measure, operates outside the procedural framework of ordinary immigration proceedings.
The practical consequences of this judicial disarray are severe. Individuals in states governed by the Fifth Circuit’s jurisdiction have been removed under the act with minimal judicial oversight, while courts in the Ninth and Third Circuits have issued injunctions halting further removals. The result is a patchwork in which the legality of a person’s deportation may depend entirely on the geographic accident of where he or she was apprehended — an outcome that offends every principle of uniform federal law.
The Solicitor General filed a petition for certiorari before the Supreme Court on March 14, 2026, requesting expedited review and consolidation of the circuit cases. The petition frames the question presented with characteristic precision: ‘Whether the President may invoke the Alien Enemies Act of 1798 to authorize the removal of nationals of a foreign state whose non-state actors are engaged in predatory incursions against the United States, and, if so, what procedural protections, if any, attach to such removals.’ Several amicus briefs have already been filed, including one from a bipartisan group of former national security officials urging the Court to reject the administration’s theory, and another from twenty-two Republican state attorneys general supporting it.
The Court’s decision whether to grant certiorari — expected within weeks — will determine whether the most consequential expansion of executive deportation authority since World War II proceeds unchecked or is subjected to the discipline of constitutional adjudication. The justices face a question that is at once ancient and immediate: whether a statute designed to protect a young republic from the agents of foreign empires at war may be repurposed, two centuries later, to wage a domestic campaign against transnational crime. The answer will reverberate far beyond the immigration docket. It will define, for a generation, the architecture of power between the branches in an era when the traditional categories of war and peace have become, in the government’s own telling, obsolete.
Whatever the Court decides, the underlying political reality is already etched in precedent of a different kind. Thousands of individuals have been removed under the Alien Enemies Act since the program’s inception, many to countries they have never lived in, some without any meaningful opportunity to contest their designation. For them, the circuit split is not an abstraction of appellate procedure. It is the difference between a life rebuilt and a life erased — and the republic that permitted it will be judged, in time, by the distinction it chose to draw between the two.