The Trump administration is free to use a wartime powers law to speed up deportations after a Supreme Court ruling on Monday.
The Alien Enemies Act of 1798 — which Trump used last month to deport alleged Venezuelan gang members to El Salvador — gives the president broad authority to remove undocumented immigrants, but it had previously only ever been invoked during actual wartime.
Venezuelan organized crime group Tren de Aragua, which is present in the U.S. and other countries, is the top target for deportation under the law, the White House said last month. Trump instructed his administration to designate the group as a foreign terrorist organization, and they claim they’re using the law to remove its members.
“I proclaim that all Venezuelan citizens 14 years of age or older who are members of TdA, are within the United States, and are not actually naturalized or lawful permanent residents of the United States are liable to be apprehended, restrained, secured, and removed as Alien Enemies,” the invocation on the White House site states.
The law is intended to be invoked when the country is at war or if a foreign nation has invaded the U.S. or has issued threats that they will. While the administration has pointed to threats from gangs and cartels, legal experts have noted that it would be challenging for the administration to use the law when the U.S. isn’t being actively attacked by a foreign government.
The deportation of alleged Venezuelan gang members was temporarily blocked by a lower court last month after it ruled that the Trump administration’s actions under the act required further scrutiny.
Trump has claimed that the migrants were members of the Tren de Aragua and that they were “conducting irregular warfare” against the U.S. and could therefore be removed under the act. At least 137 people have recently been deported under the act, with some relatives of the deported migrants claiming that they were wrongly detained and not affiliated with any gangs.
The Supreme Court justices said that deportees must be given the chance to challenge their removal, saying in an unsigned decision on Monday that “the notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”
"The only question is which court will resolve that challenge," they added.
The ruling on Monday stated that the challenge, which was put forward by the American Civil Liberties Union (ACLU) on behalf of five migrants, was incorrectly raised in a court in Washington, D.C., instead of in Texas, where the migrants are held.
Justice Amy Coney Barrett, appointed by Trump during his first term, joined the liberal justices in dissenting from the majority ruling. They wrote that the administration’s “conduct in this litigation poses an extraordinary threat to the rule of law.”
Trump, meanwhile, said the ruling was a “great day for justice in America.”
“The Supreme Court has upheld the Rule of Law in our Nation by allowing a President, whoever that may be, to be able to secure our Borders, and protect our families and our Country, itself,” he said in a post on Truth Social.
ACLU lawyer Lee Gelernt said in a statement: “We are disappointed that we will need to start the court process over again in a different venue, but the critical point is that the Supreme Court said individuals must be given due process to challenge their removal under the Alien Enemies Act.”
Monday’s ruling by the Supreme Court vacates a previous ruling by federal Judge James Boasberg, who had temporarily blocked the use of the law.
The Alien Enemies Act has been used three times throughout history, the Brennan Center, a non-partisan law and policy institute, states. It was used during World War I and World War II to detain and remove thousands of German, Austro-Hungarian, Italian, and Japanese immigrants, as well as during the War of 1812 against Britain.
Under the law, the president can detain and deport natives and citizens of a combatant nation even without a hearing. It was meant to prevent espionage and sabotage during war, but it has also been used to target immigrants who haven’t broken any laws, haven’t shown indications of disloyalty, and whose status in the U.S. is legal, according to the Brennan Center.
“It is an overbroad authority that may violate constitutional rights in wartime and is subject to abuse in peacetime,” the center states.
While the president may invoke the law during wartime, the Constitution hands Congress the power to declare war, meaning that the president must wait for Congress to act to invoke the Alien Enemies Act. However, “the president need not wait for Congress to invoke the law based on a threatened or ongoing invasion or predatory incursion,” according to the Brennan Center.
The Trump White House chose not to wait for Congress to act, invoking the law last month.
While some anti-immigration politicians view the law as an authority to be used to deport unlawful immigrants, the Brennan Center argues that “invoking it in peacetime to bypass conventional immigration law would be a staggering abuse.”
Both Presidents Woodrow Wilson and Harry Truman continued to use the legislation even after the end of the fighting in the world wars. While World War I ended in 1918, German and Austro-Hungarian immigrants were interned until 1920.
Following the end of the Second World War in 1945, the Truman administration used the law to intern and deport people until 1951.
Beatriz Lopez, the co-executive director of the Immigration Hub, said in a statement before the White House invocation that “Trump is unearthing one of America’s darkest laws to launch a deportation dragnet unlike anything in modern history.”
“The Alien Enemies Act will make it easier for ICE to identify, arrest, and deport taxpaying, long-settled immigrants who have built lives, families, and businesses here,” she added. “Especially with access to personal data through the IRS, families across the country will be at risk of deportation even if they arrived in the U.S. lawfully.”
Katherine Yon Ebright, a counsel at the Brennan Center, said on X last month that “Obviously this is an illegal invocation of a wartime authority for peacetime immigration enforcement.”
“The administration is invoking the Alien Enemies Act to effect summary deportations of Venezuelans who it *claims* are members of Tren de Aragua,” she added. “They are hoping that the wartime law will allow them to evade judicial review and get away with making baseless accusations.”
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