Trump Is Using the Alien Enemies Act to Deport Immigrants – but the 18th-century Law Has Been Invoked Only During Times of War

So in 1798, the Federalists tried to quell domestic opposition by passing the Alien and Sedition Acts, a series of controversial laws that banned political dissent by limiting free speech. The laws also made it harder for immigrants to become citizens.

One of these laws was the Alien Enemies Act, which gave presidents broad authority to control or remove noncitizens ages 14 or older if they had ties to foreign enemies during times of a declared war.

The Alien and Sedition Acts elicited a firestorm of criticism soon after they were passed, including from Jefferson and James Madison, who asserted that states have the right and duty to declare some federal laws unconstitutional. The populist backlash against the Alien and Sedition Acts helped propel Jefferson and Democratic-Republicans to victory in the 1800 presidential election. Nearly all of the Alien and Sedition Acts were then either repealed or allowed to expire.

Only the Alien Enemies Act, a law enacted without an expiration date, survived.

History of the Alien Enemies Act
Madison, the fourth U.S. president, first invoked the Alien Enemies Act during the War of 1812 with Great Britain, which was sparked for several reasons, including trade and territorial control of North America.

Madison invoked the act in 1812 by proclaiming that “all subjects of His Britannic Majesty, residing within the United States, have become alien enemies.”

But rather than imposing mass deportations, Madison’s administration simply required British nationals living in the U.S. to report their age, home address, length of residency and whether they applied for naturalization.

More than 100 years later, President Woodrow Wilson invoked the Alien Enemies Act during World War I in April 1918.

Wilson used the Alien Enemies Act to impose sweeping restrictions on the residency, work, possessions, speech and activities of foreign nationals from places that the U.S. was at war with – Germany, Austria-Hungary, the Ottoman Empire and Bulgaria. U.S.-born women married to any people born in these places were also deemed “enemy aliens.”

The U.S. Marshals Service carefully monitored about half a million Germans in the U.S. to make sure they followed Wilson’s restrictions.

Another 6,000 German “enemy aliens” were arrested and sent to internment camps in Georgia and Utah, where they were confined until after an armistice was signed between the Allies and Germany in November 1918.

Two decades later, President Franklin D. Roosevelt notoriously used the Alien Enemies Act in World War II.

In 1941, Roosevelt authorized special restrictions on German, Italian and Japanese nationals living in the U.S. More than 30,000 of these foreign nationals, including Jewish refugees from Germany, spent the war imprisoned at internment camps because the government considered them potentially dangerous. The U.S. government released these detainees after World War II ended.

The vast majority of the 110,000 Japanese American men, women and children interned during the war were not held under the Alien Enemies Act. The government used a separate executive order during World War II to intern most people of Japanese descent, some of whom were born in the U.S.

What’s Very Old Is New Again
Civil liberties and immigrant rights groups pledged to fight Trump’s use of the act by filing legal challenges if Trump invoked it.

The Trump administration wrote in its order that the Venezuelan criminal organization Tren de Aragua is “conducting irregular warfare and undertaking hostile actions against the United States.”

The American Civil Liberties Union and another legal nonprofit, Democracy Forward, filed a lawsuit on March 15, the same day the Trump administration announced it was invoking the act.

The Alien Enemies Act’s text and history present formidable legal hurdles for the Trump administration proving that Tren de Aragua is at war with the U.S. While the organization is primarily based in Venezuela, Tren de Aragua members in the U.S. have been arrested in Pennsylvania, Florida, New York, Texas and California for crimes including shooting New York police officers.

The 1798 law is clear that an “invasion or predatory incursion” must be undertaken by a “foreign nation or government” in order for it to be invoked.

Yet Congress has not declared war on any country, including Venezuela, in over 80 years, nor has another government launched an invasion against U.S. territory.

And drug cartels are not actual national governments running Latin American countries, so they don’t meet the criteria in the Alien Enemies Act.

In the past, Trump’s senior advisers have said with no clear evidence that the administration can justly claim that some Latin American governments, such as Mexico and Venezuela, are run by drug cartels that are attacking U.S. security.

Whatever the argument, the tenacious problem that the Trump administration will face is that neither the letter of the law nor historical precedents support peacetime use of the Alien Enemies Act.

None of these textual and historical realities will matter, however, if the courts ultimately decide that a president – simply saying that the country is being invaded by a foreign nation – is sufficient to legally invoke the act and is not subject to judicial review.

This makes it impossible to automatically dismiss blueprints for using an 18th-century law, however dubious, and it appears the Venezuelan deportations case appears headed for the Supreme Court. If Trump succeeds at invoking the Alien Enemies Act, I believe it would add another chapter to the Alien Enemies Act’s sordid history.

Daniel Tichenor is Professor of Political Science, University of Oregon. This article is published courtesy of The Conversation. This is an updated version of a story originally published on Dec. 11, 2024.