GENERAL
What is the Alien Enemies Act of 1798?
The Alien Enemies Act of 1798 is a federal law that grants the US president authority to detain, relocate, or deport non-citizens from a hostile nation during times of declared war or invasion. Legislated as part of the Alien and Sedition Acts, it was designed to protect national security by allowing the government to act against foreign nationals who might pose a threat during conflicts.
“Whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President of the United States shall make public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies.” — Alien Enemies Act of 1798, 50 U.S. Code § 21 (1798)
Previous Uses
Throughout American history, the Alien Enemies Act has been invoked sparingly, always during significant conflicts:
War of 1812: The US government used the act to detain and expel British nationals during hostilities with Great Britain.
World War I: Authorities targeted German, Austro-Hungarian, Bulgarian, and Ottoman immigrants, leading to surveillance, detention, and deportation based solely on their national origin.
World War II: The act was invoked by President Roosevelt after the attacks on Pearl Harbor to facilitate the internment of German and Italian immigrants. Notably, its application laid the legal groundwork for the internment of over 100,000 Japanese-Americans.
In each instance, the act was employed during formal wars declared by Congress.
Recent Use by the Trump Administration
President Trump invoked the Alien Enemies Act in March 2025 to expedite the deportation of Venezuelan nationals alleged to be members of Tren de Aragua, a Venezuelan prison gang that evolved into a multinational criminal organization and which the Trump administration designated as a terrorist organization the previous month, asserting that its activities amounted to an "invasion or predatory incursion". This interpretation aimed to leverage the act's provisions to detain and deport individuals without the standard due process typically afforded under US immigration law. By invoking the Alien Enemies Act, the administration aims to detain and deport Venezuelan citizens aged 14 and older who are not US citizens or lawful permanent residents and who it suspects to be Tren de Aragua members while circumventing established deportation procedures. This marked the first time the act was applied outside of a congressionally declared war.
On March 15, the ACLU and Democracy Forward filed lawsuits against the Trump administration on behalf of five Venezuelan men detained under the Alien Enemies Act, in an attempt to postpone their deportation. Chief Justice of the District Court for the District of Columbia James Boasburg ruled in favor of the defendants, issuing an injunction to halt the deportation of the five detainees and ordering deportation flights carrying Venezuelan migrants detained under the Aliens Enemies Act to be grounded immediately. Despite the court order, three planes carrying 137 Venezuelans detained under the act—alongside an additional 101 Venezuelans and 23 El Salvadorans expelled under ordinary immigration procedures—departed from an ICE detention facility in Texas later that day and flew to El Salvador, where the deportees were incarcerated in a local maximum security prison.
Legal and Ethical Concerns
The application of the Alien Enemies Act in this context has sparked substantial legal and ethical debates.
Constitutionality
Critics argue that invoking the act absent a formal declaration of war stretches its intended purpose and may undermine constitutional protections. Its constitutionality and ethicality have been contentious ever since its passage in 1798.
Due Process
The act's invocation allows for the detention and deportation of individuals based solely on nationality and alleged affiliation, without legal due process. This raises concerns about the potential for wrongful deportations and the erosion of civil liberties. Many Venezuelan nationals apprehended in recent round-ups executed under the Alien Enemies Act were erroneously identified as Tren de Aragua members by ICE agents who mistakenly understood their tattoos to represent gang affiliation, only to be swiftly detained and deported without customary hearings and with little opportunity to mount their legal defenses.
International Human Rights
The 238 Venezuelans deported in violation of the court order are incarcerated indefinitely at a prison in El Salvador known for its harsh conditions and extreme human rights abuses. Their legal status in El Salvador remains uncertain. Tracking of these deportees by US immigration agencies ceased after they were transferred to El Salvadoran custody, leaving their whereabouts opaque and making contact with them increasingly inaccessible.
This unprecedented use raises critical questions about executive power, due process, and the balance between national security and individual rights. It is unclear how these developments will continue to affect Venezuelans or other foreign nationals living in the United States. The deployment of the Alien Enemies Act to rapidly detain and deport non-citizens on accusations of criminality without need for evidence is undoubtedly threatening to the safety and civil liberties of immigrants.