SRL Members Sign Amicus Brief in Alien Enemies Act Case
Board Members Stuart Gerson, Alan Raul, The Hon. Barbara Comstock, Donald Ayer, and Peter Keisler, as well as Charter Members The Hon. Mickey Edwards, Paul Rosenzweig, Robert Shanks, Stanley Twardy Jr., and Trevor Potter, have signed an amicus brief this week in W.M.M. v. Trump, urging the U.S. Court of Appeals for the Fifth Circuit to reject the administration’s unprecedented attempt to use the Alien Enemies Act (AEA) to justify mass detentions and removals in the absence of war.
The amicus explains that the AEA, enacted in 1798 during fears of war with France, provides the President extraordinarily broad detention authority only when the United States is in a “declared war” or facing an “invasion or predatory incursion” by a foreign nation. Today, none of those statutory prerequisites exist. As the brief notes, “The United States is not presently at war. Nor is it under threat of foreign invasion or incursion.”
Nevertheless, the administration issued a proclamation asserting that Tren de Aragua (TdA), a Venezuelan criminal gang, is a “hybrid criminal state” whose presence constitutes an “invasion.” That theory, the amici explain, has no basis in the text or history of the AEA and conflicts with rulings across multiple courts. The Fifth Circuit panel previously held that “the Government has substantial authority to remove TdA members independent of” the AEA, sharply questioning the need to stretch a wartime statute to reach ordinary immigration enforcement.
The brief highlights that the AEA has been invoked only three times in American history: the War of 1812, World War I, and World War II. Using it now—outside wartime, and against individuals who are not agents of a foreign sovereign—would mark a dramatic and dangerous expansion of executive power. As Judge Henderson recently put it, the AEA confers “near-blanket authority” only in the narrow circumstances Congress identified.
The amici further emphasize that existing immigration and criminal statutes already give the Executive ample tools to detain, remove, and prosecute dangerous individuals. For example, under 8 U.S.C. §§ 1182 and 1227, the government may remove noncitizens engaged in terrorism, violent crime, or threats to public safety—and has repeatedly done so. The brief catalogs recent enforcement actions demonstrating that “the Administration’s own actions prove that it does not need the AEA to enforce its immigration and public safety policies.”
Indeed, federal agencies have already detained, prosecuted, or removed multiple individuals alleged to be associated with TdA using standard immigration authorities and federal criminal law, including charges for racketeering, sex trafficking, weapons offenses, and violent crime. These examples underscore the core point: immigration and criminal laws are tailored and effective, while the AEA is a “blunt instrument” designed for wartime and wholly unsuited to peacetime law enforcement.
“The Executive Branch is imbued with sufficient powers … to accomplish the Administration’s public safety and national security objectives,” the brief concludes. “It is the Executive’s duty to exercise those powers responsibly and lawfully and not to circumvent them through invocation of an act designed for wartime.”
Read the full amicus brief here.