In an unusual Tuesday order, two Fifth Circuit U.S. Court of Appeals judges clashed over a case involving the Trump administration’s application of the Alien Enemies Act (AEA).

On one side, U.S. Circuit Judge James C. Ho, chosen by President Donald Trump in his initial term, faced off against U.S. Circuit Judge Leslie H. Southwick, appointed by George W. Bush, on the other.

The decision, brief and unsigned, overturns a former three-judge panel ruling that considered Trump’s use of the AEA proclamation as invalid. Consequently, the full appellate court will reevaluate the matter.

“A poll on the petition for rehearing en banc was requested by a court member, and with the majority of the circuit judges in regular active service not disqualified voting in favor, IT IS ORDERED that this case will be reheard by the court en banc with oral arguments scheduled for a future date,” the two-paragraph order states.

But the decision was not, in fact, unanimous.

Southwick, in an extensive dissent, evaluates the use of the lesser-known wartime law by the 45th and 47th presidents and the “rapid ascent of the case from the Northern District of Texas.”

In April, the underlying case, a petition for habeas corpus, was filed in Lone Star State federal court and assigned to U.S. District Judge James Hendrix, another first-term Trump appointee. Since then, the case has had a tumultuous journey through the court system.

Days after filing the original lawsuit, by using the equivalent of an interlocutory appeal to the Supreme Court, the American Civil Liberties Union (ACLU) stopped the Trump administration from carrying out AEA deportations in the sprawling Northern District of Texas. In barring such actions, the justices issued their only Saturday order of the year — an exceedingly rare bit of weekend work.

That same issue was technically pending before the 5th Circuit when the ACLU filed with the justices. Meanwhile, the appellate court actually dismissed the appeal hours before the high court ruled by citing a lack of jurisdiction. But the plaintiffs were undeterred. They then revived the appeal by immediately filing a petition for a writ of certiorari. Then came the high court’s ruling on AEA notice, which included a remand back to the 5th Circuit to deal with the issue.

In early September, Southwick, joined by U.S. Circuit Judge Irma Carrillo Ramirez, a Joe Biden appointee, found Trump’s invocation of the 1798 law failed because there was “no invasion or predatory incursion” under the meaning of the statute. The judges also concluded that the U.S. is not at war with criminal gang Tren de Aragua nor Venezuela, and that the president’s “broad discretion” is, in fact, reviewable by the courts.

In late September, the Trump administration, in turn, asked for the full court to vacate the ruling and hear the case collectively.

Southwick, opining against rehearing, aims to vindicate his and his colleagues’ work on the months-in-the-making panel decision.

“The three separate opinions were lengthy, explored the offered authorities and many more, and reached opposing determinations on both issues,” the dissent reads. “The dissenting opinion’s exposition of the arguments that the Alien Enemies Act was properly invoked could hardly have been more complete. The majority opinion did not exhibit similar exhaustiveness, but the analysis there was also far from succinct. A third opinion provided wise insights on one of the issues.”

To hear Southwick tell it, there is simply no reason to make the nation’s high court wait even longer to review the controversial case.

From the dissent, at length:

I see no purpose to be served by requiring this case to linger here for the many months that en banc rehearing would entail. The parties deserve conclusive answers that only the Supreme Court can give. That reality was noted by one of the Supreme Court Justices at the time of the remand here: “The circumstances call for a prompt and final resolution, which likely can be provided only by this Court.” Though it may very well be that the views of a majority of the en banc court are the reverse of the views of a majority of the panel on the relevant issues, there is considerable cost in time and no benefit in the thoroughness of our response to the Supreme Court in discovering if that is so.

Southwick concludes by saying final resolution of the underlying AEA proclamation issue “is in the legitimate interests of all parties” and “also in the country’s best interest.”

Ho, in a concurrence, directs his comments first to Southwick.

“Our colleague opposes rehearing en banc on grounds of delay,” the concurrence begins. “But the burden of any delay falls on the Government. And the Government asked for rehearing en banc, rather than seek certiorari in the Supreme Court.”

The often-voluble Trump-appointed judge goes on to criticize more of his colleagues by harkening back to a 2024 case about Texas Gov. Greg Abbott’s use of a floating barrier in the Rio Grande to stop illegal immigration. In that case, the conservative appeals court ruled in Abbott’s favor but declined to answer the question, raised by Texas, of whether such immigrants constitute an “invasion.”

The concurrence suggests a level of personal foresight that might have somehow cut against many of the delays in the present case.

“Perhaps we could have minimized delay by declaring last year in United States v. Abbott, that the Judiciary has no business telling the Executive that it can’t treat incursions of illegal aliens as an invasion,” Ho continues. “But we are where we are. The issue is obviously compelling. I concur in the grant of rehearing en banc.”