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5th Circuit Smacks Down Trump on Alien Enemies Act

In the most important court decision on a day full of them, the most conservative federal appeals court became the first to address the substance of President Trump’s invocation of the Alien Enemies Act and found it to be unlawful.

The late-in-the-day Tuesday ruling by the 5th Circuit Court of Appeals torpedoed the premise for Trump’s AEA deportations. On a 2-1 vote, Judges Leslie H. Southwick (Bush II) and Irma Carrillo Ramirez (Biden) found the AEA to be a wartime law not applicable to criminal gangs like Venezuela’s Tren de Aragua. The panel found there was no “invasion” or “predatory incursion” as required by AEA.

Judge Andrew Oldham (Trump) dissented in strong terms, and it’s not at all clear that this decision would stand up if the full 5th Circuit were to re-consider it.

The weekend deportations in March, the defiance of court orders to stop the removals, the incarceration of more than 200 Venezuelan men at CECOT in El Salvador for months — all of it was predicated on an unlawful invocation of the Alien Enemies Act.

Trump Violated Posse Comitatus Act

U.S. District Judge Charles Breyer of San Francisco ruled that President Trump’s use of the National Guard in California in a law enforcement capacity violated the 19th century Posse Comitatus Act.

To be clear, Breyer didn’t find Trump’s big anti-immigration show of force with the National Guard to be unlawful in and of itself. A federalized National Guard can be used to protect federal installations and personnel, Breyer ruled, but it can’t engage in domestic law enforcement activities.

“President Trump and Secretary Hegseth have stated their intention to call National Guard troops into federal service in other cities across the country—including Oakland and San Francisco, here in the Northern District of California—thus creating a national police force with the President as its chief,” Breyer warned.

The California deployment – Trump’s over-the-top response to protests against mass deportation – was full of examples of the National Guard being used as a local police force, Breyer found. He concluded that the Trump administration’s violations of the Posse Comitatus Act were willful and blocked the National Guard from engaging in further law enforcement activity.

Appeals Court Blocks Trump’s Firing of FTC Commissioner

This decision may be short-lived given where the Supreme Court is headed, but the D.C. Circuit Court of Appeals ruled that President Trump did not have the power to unilaterally fire Democrat-appointee Rebecca Kelly Slaughter from the Federal Trade Commission. Relying on existing Supreme Court precedent, the appeals court reinstated her to her position. The problem, of course, is that the Supreme Court has all but overruled its own precedent on independent agencies and is likely to formally overturn it soon.

Through the Looking Glass

A separate D.C. Circuit panel issued a travesty of a ruling in that confounding Environmental Protection Agency grants case which the Trump DOJ has tried but so far has failed to turn into a criminal prosecution.

You’ll recall that this Biden EPA grant program worth $20 billion was the target of wild conspiracies and false accusations from the MAGA right. EPA Administrator Lee Zeldin and the Trump DOJ went after the program aggressively, scaring Citibank into freezing account funds, leaving some EPA contractors high and dry. Then-acting U.S. Attorney Ed Martin kept pursuing the case, reportedly using grand juries outside of D.C. after the senior career prosecutor overseeing the criminal division of his office was forced out for refusing to play along in the case.

The Trump appointees on the panel — Judges Neomi Rao and Gregory Katsas — bought the conspiracizing and false accusations hook, line and sinker, and cleared the way for the EPA to claw back the billions of dollars in funding, as Politico witheringly noted:

The court seemed especially taken with the “gold bars” video cited regularly by Zeldin — an undercover recording of an EPA staffer last December who colorfully described the Biden administration’s rush to obligate additional grants under the IRA before the Trump administration took power. That staffer and other Biden officials have said he was referring to other grant programs, not the GGRF, which the IRA required to have been obligated by September 2024.

Obama appointee Nina Pillard found herself once again in dissent:

“The agency has no lawful basis — nor even a nonfrivolous assertion of any basis — to interfere with funding that, pursuant to Congress’s instructions, already belongs to Plaintiffs, who in turn have committed it to energy infrastructure development and advanced manufacturing projects according to Congress’s plan.”

It’s truly an egregious decision that validates (i) an administration disinformation campaign; (ii) a prosecutorial witch hunt; and (iii) a muscular executive branch that can ignore Congress and the funding laws it passes.

The price for having two Trump appointees on the motions panel back in March, when this case first arose, continues to be steep. The full D.C. Circuit will likely be asked to re-consider this case.

Sign of the Times

An earnest 84-year-old Reagan appointee to the federal bench seemed stunned and saddened after he was preposterously scolded last month by Justices Brett Kavanaugh and Neil Gorsuch for allegedly ignoring Supreme Court precedent on its emergency docket.

The public thrashing by the justices for a failure to properly divine the inscrutable meaning of barely explained emergency docket decisions has been called out by commentators. But it still left U.S. District Judge William Young of Boston to try to pick up the pieces of the National Institutes of Health funding case. He issued a pained apology from the bench Tuesday:

Before we do anything, I really feel it’s incumbent upon me to — on the record here — to apologize to Justices Gorsuch and Kavanaugh if they think that anything this court has done has been done in defiance of a precedential action of the Supreme Court of the United States. I can do nothing more than to say as honestly as I can: I certainly did not so intend, and that is foreign in every respect to the nature of how I have conducted myself as a judicial officer.

The Retribution: Mail-In Voting Edition

In another episode of bald and unequivocal retaliation, President Trump announced Tuesday that he was relocating the headquarters of U.S. Space Command to Alabama from Colorado to punish it for … having mail-in voting:

Trump on moving Space Force base from Colorado: "The problem I have with Colorado — they do mail in voting. They went to all mail in voting, so they have automatically crooked elections. And we can't have that."

— Aaron Rupar (@atrupar.com) 2025-09-02T18:53:55.736Z

Big Trouble Brewing in Illinois?

Illinois Gov. JB Pritzker (D) warned in alarming tones Tuesday that the Texas National Guard was being deployed to a Navy base his state in preparation for what would amount to an unwelcome invasion by a fellow sovereign state.

The move would be different from Trump’s deployment of the National Guard in D.C. (not a state) and in California (where he federalized it in accordance with the law). To engage in law enforcement activities and get around the Posse Comitatus Act problem that we already discussed above, the National Guard would have to remain unfederalized. That’s what makes this such an unusual situation.

Later in the day, a spokesman for Texas Gov. Greg Abbott (R) denied that he was planning to deploy the Texas National Guard to Illinois. As we wait to see if this plays out, Georgetown law professor Steve Vladeck surveys the legal landscape implicated by this particular scenario.

IMPORTANT

In a legally dubious and regionally destabilizing attack, the United States took offensive military action against an alleged cartel motorboat in international waters off Venezuela. Eleven people were reportedly killed in the aerial attack on the marine vessel.

The move comes after the Trump administration set in motion certain legal implications earlier this year by dubbing narco-cartels as terrorist organizations.

“The action comes amid a major buildup of U.S. naval forces outside Venezuela’s waters, the NYT reports. “The administration has also stepped up belligerent rhetoric about fighting drug cartels and labeled Venezuela’s president, Nicolás Maduro, a terrorist cartel leader.”

The paradigm shift from treating drug trafficking as a law enforcement problem to a military target will have far-reaching and lasting consequences for the rule of law at home and abroad. Drug trafficking alone is not a capital offense, but the U.S. military is now summarily executing suspected drug traffickers on the high seas.

Quote of the Day

“If you often feel at a loss for words right now, that’s understandable. Significant new elements are in play, along with classic autocratic tactics. The sabotage of America by a sitting U.S. president is a tragic and history-making innovation.”–NYU history professor Ruth Ben-Ghiat

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A lot of things happened. Here are some of the things. This is TPM’s Morning Memo. Sign up for the email version.

A Replay of the Alien Enemies Act Debacle … With One Big Difference

The Trump administration was busted over the holiday weekend trying to whisk unaccompanied Guatemalan children out of the country.

It was a replay of the mid-March weekend when the Trump administration secretly launched its Alien Enemies Act deportations. But unlike the Constitution-shaking defiance it showed last time, administration officials appear so far to have abided by the emergency court orders to stop the flights, deplane the children, and return them to the U.S. government agency that originally had custody of them.

U.S. District Judge Sparkle Sooknanan of Washington, D.C., put in a yeoman’s effort over the weekend to block the removals and to do so in a way that gave the administration no benefit of the doubt and little to no wiggle room.

Sooknanan first learned of the emergency lawsuit by the National Immigration Law Center after it was filed around 1 a.m. ET on Sunday morning. She issued a middle-of-the-night restraining order to block the removals of the 10 unaccompanied minors who filed the lawsuit and scheduled a Sunday mid-afternoon hearing to consider expanding her order to include some 600 similarly situated Guatemalan children in the United States.

But after receiving reports that the flights were underway, Sooknanan issued a second order barring the removal of the larger group of children and moved the hearing up to midday. Lawfare’s Anna Bower was all over it in real time and chronicled the emergency hearing.

“I have the government attempting to remove minor children from the country in the wee hours of the morning on a holiday weekend, which is surprising, but here we are,” Sooknanan said when she convened the hearing.

The administration contended in court that the deportations weren’t removals but repatriations done in conjunction with the Guatemalan government and parents or families who wanted the children back. The plaintiffs contested those claims, and the dead-of-night operation suggested nefariousness was afoot.

At least one plane carrying children may have taken off before returning to the United States, a Trump DOJ lawyer told the court, an ironic callback to the AEA case in March when a federal judge ordered the planes to turn around but the administration ignored it.

Sooknanan ordered the Trump administration to file a series of status reports on their progress in deplaning the children and returning them to the custody of the Office of Refugee Resettlement. Those status reports continued Sunday night into midday Monday of the Labor Day weekend, when the final status report from the administration confirmed that all of the children had been returned to ORR custody. At one point, as Bower noted, Sooknanan appeared to have been awake for 20 hours straight dealing with the emergency case.

In an additional twist, reporting from Politico suggests that “some of the facilities in which the children have been housed may be resisting instructions to turn them over to Immigration and Customs Enforcement.” Politico obtained a memo — dated Sunday and signed after Sooknanan’s order — from the acting director of the Office of Refugee Resettlement that chastised its contractors:

Negligent or intentional failure to comply with lawful requests from ORR regarding the care of children in your care facility will result in prompt legal action, and may result in civil and criminal penalties and charges, as well as suspension and termination of contractual relations with your facility.

Stay tuned.

Judge Blocks Trump’s Fast-Track Deportations

U.S. District Judge Jia Cobb of Washington, D.C., on Friday blocked a centerpiece of President Trump’s mass deportation strategy: fast-track deportations far from the southern border.

“When it comes to people living in the interior of the country, prioritizing speed over all else will inevitably lead the government to erroneously remove people via this truncated process,” Judge Cobb wrote in her ruling.

Keep an Eye on This

The ACLU is asking the entire D.C. Circuit Court of Appeals to reconsider a panel decision that ended U.S. District Judge James Boasberg’s contempt of court proceedings in the original Alien Enemies Act case.

Can’t Let Go

Emil Bove continued to work at the Trump Justice Department after he was confirmed by the Senate to a federal appeals court seat, the NYT reports.

What’s the Point of Congress?

President Trump asserted the presidential power to use the “pocket rescission” to not spend nearly $5 billion in foreign aid this year, further complicating the politics of the government shutdown looming at the end of this month.

For Your Radar …

President Trump continues to reveal his rat-fucking plans for the 2026 mid-term elections in piecemeal fashion by posting threats on social media that wildly exaggerate the constitutional powers of the presidency. Trump’s latest effusion promises an executive order requiring voter ID in all elections even though the president has no power over or involvement with election administration.

2026 Ephemera

• IA-Sen: Two-term Sen. Joni Ernst (R-IA) will not seek re-election.
• NY-12: After more than 30 years in Congress, Rep. Jerry Nadler (D-NY) will not run in 2026.
• WI-Supreme Court: Uber-conservative and trolly Justice Rebecca Bradley won’t seek re-election next year, giving Democrats a chance to expand their majority on the court.

Good Read

The Cut: An Astrologer’s Messy Affair With a Trump Pentagon Official

Ooof …

On the same weekend that Rudy Giuliani was injured in a car accident in New Hampshire, President Trump announced that he’s awarding his former attorney the Presidential Medal of Freedom, the nation’s highest civilian honor.

Duke Cunningham, 1941-2025

Disgraced former Rep. Randy “Duke” Cunningham (R-CA), the former Navy aviator whose congressional career ended in a political corruption scandal that was epic by the now-quaint standards of the time, has died at age 83. Cunningham spent nearly a decade in prison after resigning from Congress and pleading guilty to federal corruption charges. He was later pardoned by Donald Trump, on the last day of his first term as president.

Cunningham, who lived rent-free aboard a yacht docked in DC called the “Duke-Stir” that was owned by a defense contractor, admitted to taking more than $2 million in bribes in return for steering government contracts to favored contractors via earmarks. Among the lowlights of his sordid case was selling his San Diego home to the same defense contractor for far above market value and keeping a handwritten list of bribe offerings.

Longtime TPM readers will remember Cunningham as a central figure in TPM’s coverage of the rampant political corruption in George W. Bush’s second term, especially in the Tom Delay-run House of Representatives. The Cunningham case, among many other scandals, contributed to the 2006 Democratic takeover of the House, ending a dozen years of GOP control.

TPM’s Golden Duke award, celebrating the best in political corruption and scandal, is named in dishonor of Cunningham.

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