On March 15th, Donald Trump invoked the Alien Enemies Act of 1798 in order to speed up the deportations of Venezuelan immigrants, specifically targeting the Tren de Aragua prison gang. Under this Act, the president has the authority to “detain, apprehend, and deport noncitizens from nations deemed hostile” during wartime without needing to appear before an immigration or federal court judge.
What is the Alien Enemies Act of 1798?
The Alien Enemies Act of 1798 is the last remaining law of the Alien and Sedition Acts of 1798. It gives the president broad power over noncitizens and can be invoked only during periods of declared war or invasion. The Acts were originally used by President John Adams, who, in preparation for a war with France, aimed to limit public criticism of the U.S. government out of fear that “aliens” in the United States would sympathize with France. The Acts faced criticism for being an overreach of federal power that violated the First Amendment, and all except for the Alien Enemies Act were subsequently repealed or allowed to expire. The Alien Enemies Act of 1798 has only been invoked sparingly in times of major conflict: the War of 1812, World War I, and World War II.
Read more about the Alien Enemies Act of 1798 here
Who are the Tren de Aragua?
The Tren de Aragua (otherwise known as TdA) originated as a Venezuelan prison gang that later branched into what the Biden administration labeled a “transnational crime organization”, operating in the United States where the gang is suspected of committing a spree of robberies and the high profile shootings of a New York police officer and former Venezuelan police officer in Florida. Alleged gang members have been arrested and charged with crimes ranging from murder to kidnapping in Texas, Florida, New York, and Illinois.
How Has Trump Used the Act?
Trump is invoking the Alien Enemies Act to expedite the deportation of Venezuelan citizens considered to be part of the Tren de Aragua gang who are not U.S. citizens or permanent residents. In his proclamation, President Trump states that Venezuela has ceded control of territory to gangs, including the Tren de Aragua, and that the Tren de Aragua is a “criminal state perpetrating an invasion of and predatory incursion into the United States.” The proclamation argues that the migration of Venezuelan citizens associated with the gang “demonstrates that the Tren de Aragua has invaded the United States.” Using the language of “invasion,” the administration asserts that the gang’s actions constitute “irregular warfare,” arguing that this gives the President grounds to invoke the Alien Enemies Act outside of a wartime context.
The Current State of the Act
A few hours after President Trump initiated the deportations of Venezuelan migrants under the Alien Enemies Act, U.S. District Judge James E. Boasberg temporarily barred the Trump administration from carrying out the deportations. The block came after the American Civil Liberties Union brought a lawsuit claiming that the Alien Enemies Act only applied to “warlike actions” and “cannot be used here against nationals of a country” outside of declared war. Judge Boasberg agreed with this argument, stating that “invasion” relates to “hostile acts perpetrated by enemy nations” rather than individuals or gang activity. He also stated that delaying migrants’ removal “does not cause the government any harm,” as they will remain in government custody upon their continued stay in the United States.
Those in favor of Trump’s actions such as Attorney General Pam Bondi and Deputy Assistant Attorney General Drew Ensign argue that the use of the Alien Enemies Act is within the scope of the President’s power. Ensign points to a Supreme Court decision that allowed former President Truman to detain a German citizen three years after the end of World War II.
What Comes Next?
The Justice Department appealed Judge Boasberg’s temporary block against Trump’s use of the Alien Enemies Act and a federal appeals hearing was held on March 24th to determine the status of the block. The appeals court has not yet ruled on the temporary block, but it is expected that regardless of the outcome, the decision will be appealed to the Supreme Court.
