“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
Trump Judge Andrew Oldham dissented in a Fifth Circuit case involving President Trump’s misuse of a statute that only applies during wartime or foreign invasion. He would have ruled that Trump’s ability to declare that a foreign country has invaded the U.S. cannot be questioned by a court, no matter that no such invasion has occurred. He also painted Trump as a victim who is uniquely mistreated by the courts. The September 2025 case was W.M.M. v. Trump.
What was this case about?
Earlier this year, the Trump administration began to round up immigrants and send them to a concentration camp in El Salvador. As its legal authority to do this, it cited a statute that only applies in wartime. And it refused to give the targeted immigrants a fair chance to defend themselves against the government’s accusations against them.
A 1798 law (the Alien Enemies Act, or AEA) gives the president special powers to remove citizens of a foreign country under narrow circumstances: either a “declared war” against that nation, or an “invasion or predatory incursion” by that nation. Trump announced that Venezuela had triggered the 1798 law. He claimed that a Venezuela-based gang called Tren de Aragua (TdA) was “conducting irregular warfare” against the United States on behalf of the government of Venezuela. Therefore, any Venezuelan member of the gang in the U.S. could be deported under the 1798 law. His administration began to round up Venezuelan nationals and accuse them of being TdA members, often with little to no reliable evidence.
The court had to decide whether the 1798 law applies to TdA members, or whether the entire scheme is illegal.
What happened at the Fifth Circuit, and what would Oldham have done?
A panel majority ruled that Trump unlawfully invoked the 1798 wartime law. The opinion was written by Leslie Southwick (a George W. Bush nominee) and joined by Irma Ramirez (a Biden nominee). Oldham dissented.
The majority ruled that the presence of Venezuelan TdA members does not constitute the type of invasion or predatory incursion that the statute refers to. Citing dictionaries and other sources from the founding era, Southwick wrote that the word “invasion” and phrase “predatory incursion” were both understood to refer to military actions. Fostering unlawful immigration, drug use, and gang violence are simply not military actions. And Trump’s labeling the gang’s activities as “irregular warfare” does not transform them into military actions.
Oldham angrily dissented. He wrote that the president’s invocation of an invasion or incursion is not reviewable by courts. He complained that Trump was being treated differently from other presidents and, in fact, was being treated “as if he were some run-of-the-mill plaintiff in a breach of contract case.” He accused the majority of being “robed crusaders who get to playact as multitudinous Commanders in Chief.”
Trump seeks to fill the courts with obsequious judges who will not hold him accountable to the Constitution and the rule of law. This ruling illustrates the importance of our federal courts to protecting our freedom as the president engages in a campaign to disappear people and frighten the American population into fearful subservience.