‘The modern equivalent of a pirate’: Trump-appointed judge becomes first to back president’s use of Alien Enemies Act to fast-track migrant removals

President Donald Trump boards Air Force One, Monday, May 12, 2025, at Joint Base Andrews, Maryland (AP Photo/Alex Brandon).

President Donald Trump boards Air Force One, Monday, May 12, 2025, at Joint Base Andrews, Maryland (AP Photo/Alex Brandon).

A Donald Trump-appointed federal judge in Pennsylvania became the first on the bench to rule that the president acted within the scope of his power by invoking the Alien Enemies Act to fast-track the removals of Venezuelan men accused of being members of the Tren de Aragua (TdA) gang.

U.S. District Judge Stephanie L. Haines, who was appointed during Trump’s first term, on Tuesday issued a 43-page opinion holding that the president could issue a proclamation pursuant to the 18th-century wartime power calling for the swift removal of accused TdA members so long as the detainees are provided “sufficient notice and due process” as ordered by the U.S. Supreme Court last month.

Haines’ order runs contra to multiple other judges who have issued rulings on the merits of the president’s proclamation — including Trump-appointed U.S. District Judge Fernando Rodriguez Jr. of Texas — all whom held that the administration’s effort failed to meet the preconditions prescribed by the AEA, which has only been invoked three times during actual wars.

Under the AEA, the president is authorized to summarily remove “natives, citizens, denizens, or subjects” of a “hostile nation or government” when there is “declared war” against it or when it has “perpetrated, attempted, or threatened against the territory of the United States” an “invasion or predatory incursion.” In a controversial and novel use of the power, Trump declared that the Venezuelan gang Tren de Aragua (TdA) had engaged in an “invasion” or “predatory incursion” of the U.S. such that any member of the group was summarily removable under the Act.

Judges have repeatedly thwarted removals under the AEA since the first planes on March 15 flew migrants to a notorious terrorist prison in El Salvador — likely in violation of a federal judge’s order to have the detainees returned to the country. Notably, the administration has admitted to “wrongfully” removing several individuals under the statute, though officials have made almost no effort to abide by court orders, including the Supreme Court, demanding the government “facilitate” their return.

Judges who addressed the question prior to Haines ultimately reasoned that TdA was not a “government” or “foreign nation” and could not be said to have engaged in an “invasion” or “predatory incursion,” both of which are likely reserved for some form of military action.

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Haines, whose Tuesday order lifts a temporary restraining order she issued last month barring the federal government from removing migrants held in the Western District of Pennsylvania out of the country under the AEA, disagreed with her colleagues’ interpretations of the statute and its requirements.

In her opinion, Haines relies heavily on the fact that Secretary of State Marco Rubio in February deemed TdA a “foreign terrorist organization” (FTO)

“[T]he Proclamation and the Declarations that Respondents have submitted to this Court indicate that there is a factual basis for President Trump’s conclusions in the Proclamation,” Haines wrote. “Most of all, the Proclamation references the fact that the Secretary of State has designated TdA as an FTO pursuant to [Title 8 of the United States Code], a designation that heavily supports the conclusions within the Proclamation that TdA is a cohesive group united by a common goal of causing significant disruption to the public safety of the United States.”

The judge goes on to reason that TdA is engaged in a “predatory incursion” because an FTO is a “cohesive group of individuals united by a common goal of causing significant disruption to the common safety of the public,” likening the gang to military detachments and “pirates” that existed at the time the statute was enacted by quoting an 1832 Supreme Court decision.

“The Court calls the reader’s attention to the fact that ‘incursions’ was used here in reference to both pirates and robbers,” Haines wrote in reference to the quote. “In reading this quotation, the Court cannot help but ask: Is a Foreign Terrorist Organization like TdA not the modern equivalent of a pirate or robber?”

However, Haines rejected the Trump administration’s assertion that notifying detainees that they were being removed under the AEA with only 24 hours’ notice was insufficient. She ordered that detainees be given at least 21 days to challenge their designation under the statute, adding that such notification must be provided in a language the detainee can understand.

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