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President Trump’s decision to invoke the Alien Enemies Act of 1798 in order to deport Venezuelan migrants suspected of belonging to the Tren de Aragua gang has led to a contentious legal dispute.
On March 15, a federal judge issued a temporary restraining order against the law’s use, which was subsequently upheld by a federal appeals court on March 26. In response, a spokesperson for the White House indicated plans to appeal this ruling at the Supreme Court level.
Nevertheless, on the same day the March 15 order was issued, three flights transported over 200 Venezuelan men to El Salvador, where they are to be housed in a maximum security facility.
According to White House officials who spoke with CBS News, 137 of these individuals were expelled under the Alien Enemies Act. The remaining 101 were expelled through what officials labeled “regular” procedures under the 1952 Immigration and Nationality Act, which includes individuals who reportedly signed deportation documents after illegally crossing the border.
Below is an overview of the Alien Enemies Act and its applications.
Understanding the Alien Enemies Act of 1798
The Alien Enemies Act is one of the statutes established under the Alien and Sedition Acts during 1798, a period marked by fears of conflict with France under President John Adams and a Federalist-majority Congress.
This law grants the president the authority to detain and deport citizens from enemy nations during wartime or in the event of “invasion or predatory incursion” without guaranteeing due process.
Two other laws from the same acts extended the duration required for immigrants to become U.S. citizens and enabled the president to deport non-citizens considered “dangerous to the peace and safety of the United States,” as documented by the National Archives. The remaining law, the Sedition Act, imposed restrictions on speech viewed as critical of the government and was utilized to prosecute journalists and opponents.
Resistance to the Alien and Sedition Acts played a role in the Federalist Party’s defeat in the 1800 elections, won by Thomas Jefferson of the Democratic-Republican Party.
Although Jefferson permitted the expiration of three of the four laws, the Alien Enemies Act did not include a sunset clause, allowing it to persist in U.S. legislation.
Recently, the Neighbors Not Enemies Act has been proposed to repeal the Alien Enemies Act. This legislative effort was reintroduced in January by Representatives Ilhan Omar of Minnesota and Mazie Hirono of Hawaii, both Democrats.
Trump’s Application of the Alien Enemies Act
In a proclamation issued on March 15, President Trump asserted that the Tren de Aragua, a gang originating from Venezuela, “is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States.” He specified that Venezuelan nationals over the age of 14 associated with this gang, who are neither U.S. citizens nor lawful permanent residents, could be treated as “Alien Enemies” and subjected to apprehension and removal.
Chief Judge James Boasberg of the D.C. District Court, who temporarily blocked this enforcement, expressed skepticism regarding its legal underpinnings in the current context. In his remarks, he noted that Tren de Aragua does not constitute a “foreign nation or government,” and its conduct does not satisfy the requisite criteria of an “invasion” or “predatory incursion.”
During a March 19 press briefing, White House Press Secretary Karoline Leavitt emphasized that the actions of Tren de Aragua qualify as a “predatory incursion,” asserting that they have been dispatched by the adversarial Maduro regime from Venezuela. Additionally, she noted that upon assuming office, President Trump designated Tren de Aragua as a foreign terrorist organization.
Historical Uses of the Alien Enemies Act
The Alien Enemies Act has been cited historically during three notable periods: the War of 1812, World War I, and World War II.
In 1812, under the administration of President Madison, British nationals residing in the U.S. were mandated to provide detailed personal information to the government, as per instructions from then-Secretary of State James Monroe.
During World War I, in 1917, President Woodrow Wilson invoked the Alien Enemies Act to constrain the activities and speech of German citizens and those from other allied nations, resulting in the internment of over 6,000 German nationals and “other enemy aliens” according to the National Archives.
Following the attack on Pearl Harbor in 1941, President Franklin D. Roosevelt utilized the Alien Enemies Act to detain citizens from Japan and other Axis powers, specifically Germany and Italy. Roosevelt further enacted an executive order leading to the internment of over 100,000 Japanese Americans, an action for which the federal government issued an official apology in 1988.
In 1948, the Supreme Court ruled in the case Ludecke v. Watkins, regarding a German national ordered for removal in 1946 under the Alien Enemies Act, despite the cessation of hostilities. The 5-4 decision reaffirmed the executive’s authority, indicating that a “state of war” still existed and it was within the realm of “political judgment” to assess if an individual could be removed under the Act, which limits judicial oversight.
Justice Felix Frankfurter articulated in the opinion: “It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilities do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come.”
Conversely, Justice Hugo Black contended in his dissent that it was “nothing but a fiction” to assert that the U.S. was still at war with Germany, arguing that “the 1798 Act did not grant its extraordinary and dangerous powers to be used during the period of fictional wars.”
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