The Trump administration is reportedly considering invoking the Alien Enemies Act of 1798 to accelerate deportations, a move that has drawn significant legal scrutiny since the law grants the president broad powers to detain, relocate, or deport foreign nationals from hostile nations during wartime.
The primary target as of now, according to sources cited by CNN, is the Tren de Aragua gang, which was recently designated as a foreign terrorist organization. "Labeling Tren de Aragua as a foreign terrorist organization was the first step," a senior White House official told CNN.
Jonathan Entin, the David L. Brennan Professor Emeritus of Law, explained to The Latin Times that the law has been controversial pretty much since its inception:
The Alien Enemies Act of 1798 was controversial from the very beginning, and it remains controversial for very good reasons. That law gives the federal government sweeping authority to harass foreign nationals. Its companion law, the Sedition Act of 1798, was widely viewed as a dangerous assault of the First Amendment. But it went off the books in 1801, whereas the Alien Enemies Act remains on the books.
Entin notes that the Alien Enemies Act was initially designed to keep the United States from being drawn into European conflicts at the time of its passage, a far cry from the current use the administration wishes to adjudicate on it. "Whatever might have been said about that goal in 1798, using the Alien Enemies Act to address immigration is not legitimate or appropriate," he stated.
"There is no good reason to apply the Alien Enemies Act as an immigration control law," he added.
During his 2024 presidential campaign, Trump vowed to invoke the Alien Enemies Act, using his claim that the Venezuelan gang "Tren de Aragua" had "conquered" Aurora, Colorado, as potential justification. "I'm announcing today that upon taking office, we will have an operation Aurora at the federal level to expedite the removals of these savage gangs," he said during a rally in Aurora in October, adding that:
"We will send elite squads of ICE, Border Patrol and federal law enforcement officers to arrest and deport every last illegal alien gang member until there is not a single one left in this country"
Legal experts at the moment questioned whether the act could be lawfully invoked in the context suggested by the then candidate. "Congress (not the president) has the power to declare war," explained MSNBC's Jordan Rubin at the time adding that "while Trump and other politicians have used invasion-type language when talking about immigration, that doesn't turn the actions of people from other countries into actions taken by other countries."
Entin echoes this sentiment, raising additional concerns about the practical and legal challenges surrounding the act's application to immigration enforcement and, especially, the precarious situation in which it leaves immigrants if enacted:
"In theory, an immigrant should be able to challenge detention under this law, but how likely that might be could depend on how the government proceeds. If someone were seized under this law and spirited out of the country quickly, it would be difficult to mount a legal challenge. And even if someone were detained inside the U.S., it might be difficult to obtain a lawyer who could mount a legal challenge."
Repealing the Alien Enemies Act could also proof to be a difficult task, especially after November's elections shifted the political forces in the country. "That law has remained on the books for 227 years, and the current Congress seems very supportive of Trump, so they would be unlikely to do anything to undercut that law, let alone repeal it," explains Entin.
The Alien Enemies Act has only been used three times in history: during the War of 1812 under President James Madison, during World War I by President Woodrow Wilson against nationals of the Central Powers, and during World War II when President Franklin Roosevelt used it to intern Japanese, German, and Italian nationals.
Its past applications have led to serious civil liberties concerns, particularly regarding the internment of Japanese Americans, which later prompted a formal apology and reparations from the U.S. government in 1988.
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