What is the Alien Enemies Act of 1798? Understanding how a past necessity emerged as a present need
Shubham Ghosh
Washington D.C.: President Donald Trump’s crusade against illegal immigrants last week invoked a centuries-old law – the Alien Enemies Act of 1798 – to deport members of Venezuelan prison gang Tren de Aragua (TdA), claiming that it was invading the US. The gang has evolved into a multinational crime body over the past decade and the State Department has labeleled it a foreign terrorist organization.
According to the US government, the TdA is a transnational organization formed in Venezuela, a country with which it doesn’t have the best of ties, with a presence in several South American countries. It accused the group of kidnapping, extortion, bribery and even attacking and killing US law-enforcement.
Under the obscure 1798 law, the president has wide power to hasten mass deportations and Trump is using used it to fulfil his pledge to crack down on immigration. The proclamation authorizes the fast removal of all Venezuelan citizens aged 14 and older and deemed members of TdA are neither citizens nor lawful permanent citizens of the US. They have been held as a danger to public peace or safety to the country.
Borrowing the language of the Act, the proclamation read: "I find and declare that [Tren de Aragua] is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States.”
What is the Alien Enemies Act?
In 1798, the US was preparing for what it believed was a war with France. The Congress passed several laws called the Alien and Sedition Acts to strengthen the federal government’s reach. The Alien Enemies Act, which was signed into law by the second American president John Adams, was created to quell the fear that immigrants in the US could sympathize with the French. The president was empowered by legislation to deport non-citizens in times of war or imprison them.
“Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies,” it says.
Since then, the act has been invoked only three times and all instances were during major wars – the 1812 War against the British, World War I (1914-18) and World War II (1939-45). Its impact was intense during the Second World War when anti-foreigner fear swept the US, particularly with regards to people of German, Italian and Japanese origin. Several thousand noncitizens of Japanese, German, and Italian descent were sent to US internment camps during the war.
The laws were never popular as they curbed civil liberties, including restricting critical speeches against the government. Thomas Jefferson, who succeeded Adams as president in 1801, called the laws part of a ‘reign of witches’. He either repealed or let most of the Acts expire, except for the Alien Enemies Act, which has no expiration date.
It’s a wartime measure
The Alien Enemies Act is not a peacetime legislation. It is supposed to be used when there is a “declared war between the United States and any foreign nation or government” or if another country has invaded the US militarily. The Supreme Court has also confirmed that the act is a wartime statute which gives the president broad leeway.
But is the US currently at war?
Trump and his allies think it is. For many years, the mercurial president and his allies have claimed that the US is facing an “invasion” of people who are entering the country illegally. Rampant arrests are being made on the US border with Mexico -- which topped two million a year for two consecutive years for the first time under Joe Biden, the previous president.
They touched an all-time monthly high of 250,000 in December 2023, but fell below 8,400 in February, hitting the lowest since the 1960s.
This past weekend, Trump pledged to launch 'Operation Aurora', a plan to deploy the military on US soil to seize, detain, and deport immigrants he deems dangerous. “Can you imagine? Those were the old days when they had tough politicians, have to go back that long,” he told a rally on Saturday. “Think of that, 1798. Oh, it’s a powerful act. You couldn’t pass something like that today.”
For years, Trump and his allies have argued that America is facing an “invasion” of people arriving illegally. Arrests on the US border with Mexico topped two million a year for two straight years for the first time under President Joe Biden, with many released into the U.S. to pursue asylum. After hitting an all-time monthly high of 250,000 in December 2023, they plunged to less than 8,400 this February — the lowest levels since the 1960s.
Trump also mentioned invoking the act during his inaugural address on January 20. “By invoking the Alien Enemies Act of 1798, I will direct our government to use the full and immense power of federal and state law enforcement to eliminate the presence of all foreign gangs and criminal networks bringing devastating crime to US soil,” he said. “As commander in chief, I have no higher responsibility than to defend our country from threats and invasions.”
What critics said
While the Trump Administration has defended the decision to deport more than 200 Venezuelans over the weekend, critics have slammed the president saying he used the act to target non-state actors and not other countries. The Brennan Centre for Justice said invoking the law at the time of peace to evade the conventional immigration law would be a “staggering abuse”. It even called the move contradictory to centuries of government practice.
Advocates of immigration feel the act could see other groups of immigrants also getting targeted, irrespective of their background.
Skye Perryman, president and CEO of Democracy Forward, a national legal organization that promotes democracy, told a news outlet that the Trump Administration was trying to avoid procedures to expand power and do things without any procedure. Katherine Yon Ebright, counsel at the Brennan Center for Justice, called Trump's use of the Alien Enemies Act illegal.
“The only reason to invoke such a power is to try to enable sweeping detentions and deportations of Venezuelans based on their ancestry, not on any gang activity that could be proved in immigration proceedings,” she said in a statement, according to the BBC.
Lee Gelernt, a lawyer with the American Civil Liberties Union, told the BBC: “There’s no question in our mind that the law is being violated.”
Venezuela also lashed out at Trump for using the act, saying it unfairly criminalized the country’s migration and evoked the “darkest episodes in the history of humanity -- from slavery to the horror of the Nazi concentration camps”.
A federal judge attempted to stop the use of the law to carry out the deportations, but the White House said this had had "no lawful basis", and that the removals had already taken place. On March 15, James Boasberg, chief judge of the District Court for the US District of Columbia, issued a temporary restraining order to stop the deportations by the Trump administration.
Despite the ruling, 261 people were deported to El Salvador the same day, and 137 among them were removed under the Alien Enemies Act, a senior government official said.
The judge also appeared to say that any deportation flights that were in the air with migrants subject to the controversial order by the Trump Administration on board should be brought back to the US. The directive was not part of his written order. But that his indication came a bit late was evident when social media posts made by Salvadoran President Nayib Bukele said at least one plane carrying the deported migrants had reached his country after the order.
“Oopsie… Too late,” he commented on a news story about Boasberg’s ruling. The post was shared by Secretary of State Marco Rubio and White House Communications Director Steven Cheung.
Trump also lambasted the judge, who was appointed by former president Barack Obama, seeking his impeachment. Although he did not name Boasberg, his words appeared to be aimed at him.
“This radical left lunatic of a judge, a troublemaker and agitator who was sadly appointed by Barack Hussein Obama…This judge, like many of the crooked judges’ I am forced to appear before, should be IMPEACHED!!!” he said in a post on Social Truth.