In the 1960s, an onslaught of rock bands from the UK found their way into America’s jukeboxes. So many artists crossed the Pond that the media playfully dubbed it the “British Invasion.” While a vocal subset of old people would rant that the country would lapse into moral peril because Ringo’s hair was too long, the moniker was just a headline-friendly way to talk about an unfolding cultural phenomenon.
According to the Trump administration, the term “British Invasion” is all a president needed to hear to justify throwing Paul McCartney into a foreign gulag.
A couple years ago, that sentence would — rightly — be dismissed as unfair hyperbole. In 2026, it’s a routine Thursday for the Department of Justice.
To set the stage, the Trump administration persists in its assertion of broad power under the Alien Enemies Act of 1798. The 18th century law grants the executive branch authority to expel foreign nationals during an invasion. That’s not in dispute. The Trump DOJ’s new, deliciously ahistorical twist contends that presidents have exclusive, unquestioned power to define whatever they want as an “invasion.” If a dementia-addled president decides that foreign-born members of a street gang are an “invasion,” he can round up and expel anyone they claim has ties to that group.
And no judicial process can question them.
Despite getting a back of the hand from the Supreme Court, the government continues to take this stance. During yesterday’s Fifth Circuit en banc hearing, Chief Judge Jennifer Walker Elrod asked if the administration took the position that a president could decide the “British Invasion” was an “invasion” under the Alien Enemies Act and start deporting the Beatles. She described the hypothetical as “fanciful,” but a better description is “the ultimate softball.” When a sympathetic judge — say, a deeply conservative George W. Bush appointee — lays out a facially absurd scenario, it’s an invitation to articulate limits. “No, what the silly liberals don’t understand is that of course the president couldn’t deport a music group just because parents don’t like their music, but here’s why this vicious gang is different….” It’s a disingenuous straw argument being hand-delivered by a judge.
Assistant Attorney General Drew Ensign rejected this gift:
“These sort of questions of foreign affairs and the security of the nation are specifically political issues,” said Drew Ensign, an assistant attorney general who was arguing the administration’s case before the full 5th Circuit Court of Appeals.
In other words: yeah, we could throw John Lennon into CECOT and fuck you for daring to question us. They’ve got a military command structure under this “Sgt. Pepper” and our intelligence suggests that the may already have access to a yellow submarine.
Is Ensign secretly attempting to undermine the administration from within? Because, as an act of sabotage, it could be brilliant. As an act of straightforward appellate advocacy, it’s comically inept. Then again, his hands might be tied. The powers-that-be within this administration appear committed to taking maximalist positions on every question of executive power. You can’t build an authoritarian regime on sensible takes.
The Alien Enemies Act has only been invoked three times before. Twice during world wars — including the internment of Japanese Americans in a shameful episode that everyone to the left of the skinheads agree was a horrific policy — and once during the War of 1812… when the U.S. was actually invaded. Attempting to use the statute against a criminal gang — even when clinging to a fig leaf assertion that gang members were intentionally sent here by a Venezuelan regime running a drug cartel that the DOJ has already acknowledged doesn’t really exist — already stretched the text to the preposterous. Taking the position that it could extend to musical groups crosses into the surreal.
ACLU attorney Lee Gelernt pointed out:
Tren de Aragua is committing ordinary crimes that are being dealt with by law enforcement. The Alien Enemies Act is about wartime and it’s about the military.
That should be obvious to anyone who’s read the statute. But this is 2026, and “obvious” left the building a while ago.
However the Fifth Circuit rules, this matter rests on a collision course with the Supreme Court. In another midnight special from the shadow docket factory, the Supreme Court already rejected the idea that the administration can use this law to deport people without any due process. That said, the majority limited the rights of deportees to challenge their foreign imprisonment through the habeas process. It was another gift to the administration from conservative judges, giving the government freedom to engage in its most egregious actions as long as it conceded to minimal — if not functionally non-existent — legal safeguards. But there is no legal bar too low that this DOJ won’t demand that courts push lower.
And so, it would seem, the administration is uninterested in accepting that gift too.
Could a president deploy wartime law against the Beatles? Trump administration says “Yes” [AP via ABC News]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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