President Donald Trump invoked a law nearly as old as the US itself on Friday, March 14 – and by the following morning, a federal judge had blocked it. Nevertheless, the administration managed to deport some 300 illegals under the new law, according to Secretary of State Marco Rubio. So, what is the Alien Enemies Act of 1798, and does it really grant Trump more power to detain and deport illegals than he already had?
The Alien Enemies Act and How Trump's Using It
Back in 2019, Smithsonian Magazine released its “Special Issue on America at War.” What they found in their analysis was that the US spent about 93.5% of the calendar years between 1775 and 2018 involved in some war, somewhere, leaving only around 20 years of peace in the nation’s history. Despite this, the Alien Enemies Act has been used only three times before now – during the War of 1812, World War I, and World War II. During the Second World War, it was used to justify the internment of Japanese in the US.
The Alien Enemies Act is a wartime authority that allows the president to detain or deport people from an enemy nation. The law permits these immigrants to be targeted without a hearing and based only on their country of birth or citizenship.
But if it’s a wartime authority, how can Trump use it now – while the US is not officially at war with any Central or South American nation? The Constitution requires an act of Congress to declare war – but the Alien Enemies Act also allows the president to act when a foreign government has declared war on us or when one threatens or undertakes an “invasion” or “predatory incursion.”
President Trump officially invoked the Alien Enemies Act and began flying migrants declared “newly deportable” to El Salvador and Honduras. Many of these prisoners belonged to Tren de Aragua (TdA), a prison gang from Venezuela that grew into an international organization. “Over the years, Venezuelan national and local authorities have ceded ever-greater control over their territories to transnational criminal organizations, including TdA,” read a statement by President Trump. “The result is a hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States, and which poses a substantial danger to the United States.”
Note the use of the very specific terms “invasion” and “predatory incursion.” Historically, the terms found in the Alien Enemies Act have been interpreted more literally. However, if a broader understanding that includes illegal immigration as either an invasion or predatory incursion is accepted, then the president’s recent order invoking the law would be legitimate. It would let the Trump administration deport any immigrant deemed a member of the gang without the need for standard immigration proceedings.
Cue the Courts
President Trump’s order was blocked by James E. Boasberg, chief judge for the US District Court for the District of Columbia. The judge issued an order to halt any deportation flights until a lawsuit filed by the ACLU can be resolved. The contested issue is whether massive illegal immigration constitutes an invasion and if Trump is constitutionally allowed to invoke this law in this situation.
Meanwhile, however, El Salvador President Nayib Bukele has already taken the first couple of hundred deportees from the US and has allegedly locked them up in the Centro de Confinamiento del Terrorismo (CECOT), a mega-prison capable of holding up to 40,000 inmates designed specifically for gang members, and one of the most feared penal institutions in the world.
“Today, the first 238 members of the Venezuelan criminal organization, Tren de Aragua, arrived in our country. They were immediately transferred to CECOT, the Terrorism Confinement Center, for a period of one year (renewable),” Bukele posted to X. The El Salvador president offered to take illegal immigrants from the US regardless of their country of origin.
He also posted news of Judge Boasberg’s order, which also required any planes in the air to turn around and come back, along with the caption “Oopsie … too late” and a laughing emoji.
The Big Question
Back to the subject at hand: Can President Trump invoke the Alien Enemies Act to deport criminal illegal migrants who belong to certain gangs? There’s a saying about executive orders and other presidential actions. They’re all legal until the courts say otherwise. The historically more literal interpretation of “invasion” and “predatory incursion” – and the fact that the US has invoked the law only when in openly declared war – doesn’t bode well for the current administration's attempts.
On the other hand, the law remained in effect and was used by the presidents after both World Wars had ended. World War I ended in 1918, but Woodrow Wilson continued to intern German and Austro-Hungarian immigrants until 1920. World War II ended in 1945, but Harry S. Truman used the law for continued internment and deportations until 1951. In 1948, the US Supreme Court ruled in Ludecke v. Watkins that it was not the judiciary’s place to second-guess the president on matters as political as when war ends and wartime authority expires. The US isn’t currently at war with Venezuela, Honduras, or El Salvador. And yet the Supreme Court might look to that ’48 decision and say that it isn’t up to them to contradict a president on something as political as what constitutes invasion, incursion, or even war.
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