Invoking the Alien Enemies Act

A slap-in-the-face reminder of the partisan and hostile history of the United States

(Edit: a previous version listed the wrong dates for executive order invoking the Alien Enemies Act and the subsequent deportation flights. They happened on Friday, March 14 and Saturday, March 15.)

Last Sunday, the Trump administration very likely violated a direct court order. In the next few days, we will learn if the judge in the case believes that the administration is in contempt of court. If so, the Executive and the Judicial branches of our government will be in direct conflict, and the constitutional crisis we’ve feared (and that I wrote about previously) will be in front of us.

It’s all happening very quickly. The case regards an executive order that Trump issued on Friday, March 14: “Invocation of the Alien Enemies Act Regarding the Invasion of The United States by Tren De Aragua.”

Tren de Aragua is a transnational gang that has spread throughout Latin America and the United States through Venezuelan migration. Trump designated the group a “Foreign Terrorist Organization” in an executive order on the first day of this administration. In that January 20, 2025 order, Trump threatened to invoke the Alien Enemies Act to “expedite the removal of those who may be designated under this order.” The March 14 order is Trump following through on his threat.

The administration moved quickly. On Saturday, March 15, over 200 Venezuelan migrants already detained were deported to El Salvador, where they are being held in a Salvadoran prison camp as part of a deal that Secretary of State Marco Rubio made with the president of El Salvador, Nayib Bukele.

However, a lawsuit was immediately filed on behalf of some of the detainees, and an emergency hearing was held in front of federal judge James Boasberg in the District Court of DC. The timeline of the hearing and the deportation is critical, because Judge Boasberg ordered the immediate halting of any deportations, even saying that the government should turn around any planes.

Nonetheless, planes landed in El Salvador, the prisoners were marched off in shackles and their heads shaven to deny them their identities. Evidence of their treatment was proudly advertised by Bukele, in an effort to produce propaganda video that would make Leni Riefenstahl proud.

Judge Boasberg was not amused. He immediately called a hearing on Monday, March 17, in which he requested a statement from the Department of Justice that explicitly detailed the timing of the flight. The statement delivered on Tuesday, March 18 still failed to explicitly note the timing of the flights. The Trump administration now has until tomorrow (Wednesday) to deliver the timing information so that Judge Boasberg can determine if they were in contempt of his direct court order.

The administration has signaled that they have no intention of submitting to judicial review of the case. Trump has even called for Judge Boasberg’s impeachment on his social media platform, eliciting a rare reproach from Chief Justice John Roberts. Deputy Chief of Staff Stephen Miller said that the deportations are “not subject to judicial review.” Tom Homan, border czar, said, “I don’t care what the judges think.” Attorney General Pam Bondi, referring to Judge Boasberg, claimed “What he’s done is an intrusion on the president’s authority,” and that they would “absolutely” continue using the Alien Enemies Act to justify deportations.

Tren de Aragua has been a worrisome presence in some U.S. jurisdictions, and Donald Trump’s 2024 campaign took full advantage of the gang’s activities to instill fear in voters. The members of this gang and its associates are about the most unsympathetic victims the administration could ask for, which is probably why they were chosen. But it’s critical to remember that the case against the deportations is not about whether the gang is good or bad; it is about whether people accused of being in the gang can be forcibly deported without a fair hearing and even without being accused of any crimes at all. This is a very important point: the deportees have not been accused of any crimes, much less convicted.

We do not know who the deportees are. We do not know whether they were in the country legally. We do not know what evidence the government had that led them to believe these men were actually members of the gang. Were their tattoos the only evidence? An immigration lawyer has claimed on X that she believes that one of her clients—an asylum seeker from Venezuela—was part of the group that was deported. He was first detained by Immigration and Customs Enforcement because of his tattoos. Family members of Venezuelan migrants who suspect their kin were deported to El Salvador are also reporting that they were originally detained because of tattoos.

Trump’s justification for using the Alien Enemies Act is that the growth of Tren de Aragua constitutes an invasion, and that invasion derives from Nicolas Maduro-sponsored narco-terrorism operations. This, he claims, is an invasion by an enemy state, which is a critical point required by the text of the statute. The Alien Enemies Act gives the President the authority to deport non-citizens of a nation with which the US is at war or by which the US is being invaded. It is encoded today in 50 U.S.C. §§ 21-24, and begins with:

Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.

The Biden Administration assigned “temporary protected status” to Venezuelan migrants fleeing the regime of Maduro, who the US does not recognize as the official president of Venezuela. Trump’s Secretary of Homeland Security, Kristi Noem, has vacated an extension of the temporary protected status of Venezuelan asylum seekers in the US. Their status will expire on April 7, 2025; that is, in a couple of weeks. On that day, over 300,000 Venezuelans currently living in the US will revert to an undocumented status (if they have no other legal status).

It seems a bit of a contradiction to think that Maduro’s Venezuela is safe enough for asylum seekers—as Noem’s revocation of protected status suggests—while simultaneously so dangerous as to present a war-like danger to the US, as required by the Alien Enemies Act. There is a hearing scheduled for Friday to argue on the merits of the case; i.e., whether the administration’s use of the Alien Enemies Act was lawful.

The History of the Alien Enemies Act

The Alien Enemies Act of 1798 was enacted by Congress and signed by President John Adams as part of a series of four laws known collectively as the Alien and Sedition Acts. John Adams was the President of the United States and a member of the Federalist party; Federalists also made up the majority in Congress.

It was a time of intense partisanship—the first partisan battles of the new republic. The Federalists were countered by the Republicans (or Democratic-Republicans, to distinguish them from today’s Republican party), who grew out of the anti-Federalist movement. The animus between the two parties was intensified by the debate over US foreign policy. Britain and France were engaged in war, and the US was getting dragged into the conflict (particularly US merchant ships). The two American parties differed in how to engage.

The US signed a trade treaty with Great Britain in 1794, and this deeply angered the French. With the rise of the anti-French Federalist party after the election of 1796, the tension between the US and France rose, ultimately culminating in a “Quasi-War.” The Republicans, who were led by such figures as Thomas Jefferson and James Madison, were horrified by the situation and favored pursuing diplomacy with France. Political vitriol ran rampant through the US press, as each side attempted to harm the popular opinion of the other.

The Federalists grew increasingly hostile to the French living within the United States and to others who they (the Federalists) felt were abetting the French and causing domestic disturbance, including writers and editors of opposing newspapers. Thus the Federalist majorities in Congress passed—and Adams signed—the Alien and Sedition Acts, laws that constrained the rights of resident non-citizens and, in the case of the Sedition Act, abrogated freedom of the press. Several writers and editors who criticized the government were arrested under the Sedition Act. Jefferson, Madison, and other conspired to counter the Acts with a series of resolutions proclaiming state authority over those areas of law. Thus it was a dangerous and toxic time in US politics: an arguably unconstitutional law (the Sedition Act) countered by theories of state power that would inspire the southern slave states half a century into the future.

The partisan opprobrium was toxic and harmful, but never grew so severe as to threaten the persistence of the new republic. The first peaceful transfer of power in the face of electoral defeat occurred in 1801, when the Federalist John Adams gave up the presidency to his arch rival (and, in the long run, his best friend) Republican Thomas Jefferson. The Sedition Act expired in 1800, and Jefferson pardoned all those who fell victim to it.

The Alien Enemies Act was more bipartisan than the other three components of the Alien and Sedition Acts; those three were allowed to expire or were replaced within a few years. Notably, Adams never invoked the Alien Enemies Act specifically. The Alien acts served mainly to scare French nationals into leaving the United States.

The first invocation of the Alien Enemies Act came during the War of 1812, when the US once again found itself at war with Britain, and James Madison used the law to detain British nationals. In one case, none other than Chief Justice John Marshall established that accused enemies have a right to judicial review of their detention, even if a court order is not initially needed to detain (see Vladeck, 2007, for this as well as general overview of judicial precedent regarding the Act).

The Alien Enemies Act was not used again until over a century later, during WWI, when Woodrow Wilson invoked it against nationals of Germany and its allies. These residents were required to positively demonstrate their loyalty to the United States by submitting to several restrictions. During WWI, Congress and Wilson also resurrected the ideas behind the original Sedition Act in a new set of laws: the Espionage and Sedition Acts. Under these statutes, over a thousand labor union activists, socialists, and others (including Eugene Debs and Emma Goldman) were arrested. President Wilson ended up granting clemency to most of those prosecuted under the laws, and the Sedition Act (but not the Espionage Act) was repealed.

The Alien Enemies Act was similarly invoked by Franklin Roosevelt during WWII to detain non-citizens of German, Italian, and Japanese descent. The same fears led Roosevelt to go further and issue the infamous Executive Order 9066, which was used to evict and detain people of Japanese descent, even US citizens.

The story of the Alien Enemies Act is intertwined with some of the most bitterly partisan times and deeply regretful actions of US history. Because it does not implicate US citizens and because it, on its face, does not limit the free speech of citizens, it has survived when its sister sedition laws have been rejected. But for the Trump administration to make it the subject of their first blatant dismissal of judicial authority is, I believe, not an accident. It is a part of US Code that gives the executive immense authority. Yes, the use of the code has presented an opportunity for Trump to follow through on his threats, but using it is also a pointed political statement, a firm stance in favor of the supremacy of the Executive branch.

Abigail Adams, who, like her husband, defended the Alien and Sedition Acts, acknowledged the debate over them in her own correspondence with Jefferson. She ended with:

Time Sir must determine, and posterity will judge with more candour, and impartiality, I hope than the conflicting parties of our day, what measures have best promoted the happiness of the people: what raised them from a state of depression and degradation to wealth, honor, and reputation; what has made them affluent at home, and respected abroad, and to whom ever the tribute is due to them may it be given.

Regardless of their opinions at the time, I imagine both she and Jefferson might be surprised to learn that over 200 years later this question had not been decided, that Americans still need to ask themselves—what are the laws that uphold our values? That have made us prosperous? That have made us respected? That we want to use to govern ourselves?

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General sources and additional reading not linked:

Stephen I. Vladeck. “Enemy Aliens, Enemy Property, and Access to the Courts.” Lewis & Clark Law Review, Vol 11:4 2007. https://law.lclark.edu/live/files/9549-lcb114art5vladekpdf

H.W. Brands. Founding Partisans. (book)

Jill Lepore. These Truths. (book)

The Adams-Jefferson Letters, edited by Lester J. Cappon

Adam Hochschild. American Midnight. (book)