The Alien Enemies Act: A Controversial History and Its Modern-Day Revival

The Alien Enemies Act of 1798, one of the four infamous Alien and Sedition Acts, was originally designed to empower the president to detain or deport non-citizens from hostile nations during wartime.

Passed amid fears of foreign influence during the quasi-war with France, the act has been invoked only sparingly throughout U.S. history.

However, its use has often been controversial, and its latest application by former President Donald Trump in 2025 has reignited debates about its constitutionality, fairness, and relevance in modern times.

Trump’s invocation of the act targets Venezuelan migrants, allegedly linked to the Tren de Aragua gang—a group he recently designated as a Foreign Terrorist Organization.

Critics argue that this move is not only legally dubious but also a pretext to deport thousands of Venezuelans, most of whom are asylum seekers fleeing violence and economic collapse in their home country.

This article explores the origins of the Alien Enemies Act, its historical use, the legal arguments against its current application, and the ongoing court battles that could shape its future.

The Origins and Historical Use of the Alien Enemies Act

The Alien Enemies Act was passed in 1798 during a period of heightened political tension between Federalists and Democratic-Republicans.

Federalists, fearing French influence and internal dissent, sought to strengthen executive power over foreign nationals.

The act granted the president authority to detain or deport citizens of enemy nations during times of war or invasion without requiring individualized hearings or due process.

While other parts of the Alien and Sedition Acts expired or were repealed, the Alien Enemies Act remains on the books (50 U.S.C. ch. 3). It has been invoked sparingly throughout history:

- War of 1812: Used against British nationals.

- World War I: Targeted citizens of Central Powers nations.

- World War II: Applied to Japanese, German, and Italian immigrants—most controversially leading to Japanese internment camps, a practice later condemned as a grave injustice.

The act’s historical applications have often been criticized for targeting individuals based on nationality rather than actual threats to national security. Its use in peacetime is unprecedented until now.

Trump’s Invocation: Targeting Venezuelans

In early 2025, Trump invoked the Alien Enemies Act to deport Venezuelan migrants allegedly linked to Tren de Aragua, a violent gang originating in Venezuela’s prison system.

The gang has expanded internationally, with operations reportedly spanning South America and parts of Europe.

While federal authorities have confirmed arrests of suspected members in U.S. states such as Florida and Texas, evidence suggests that their presence in the United States is limited.

Homeland Security estimates there are fewer than 100 confirmed Tren de Aragua operatives among recent Venezuelan migrants—far from an organized national threat.

Critics argue that Trump’s invocation unfairly paints all Venezuelan migrants as potential criminals and uses gang violence as a pretext for mass deportations.

Legal Challenges: Arguments Against Trump’s Invocation

Trump’s use of the Alien Enemies Act has triggered a wave of legal challenges from immigrant rights groups, civil liberties organizations, and Democratic lawmakers. Below are the primary legal arguments being raised:

1. Misapplication of "Enemy" Designation

   - The Alien Enemies Act was designed for wartime use against nationals from enemy nations. Critics argue that Venezuela is not at war with the United States, nor is Tren de Aragua a state actor. 

   - Legal experts point out that targeting individuals based on alleged gang affiliation stretches the statute beyond its original intent.

2. Violation of Due Process

   - Deportations under the act bypass standard immigration court procedures, denying individuals their right to seek asylum or other legal protections.

Attorneys argue this violates constitutional guarantees of due process under the Fifth Amendment.

3. Unconstitutional Expansion of Executive Power

   - Scholars contend that invoking wartime powers in peacetime oversteps presidential authority.

The Constitution grants Congress—not the president—the power to declare war, which many argue is a prerequisite for using such statutes.

4. Conflict with International Law

   - Deporting individuals without proper hearings may violate international human rights obligations under treaties like the Refugee Convention, which protects asylum seekers from being returned to countries where they face persecution.

Court Battles: Where Legal Challenges Stand

The legal battle over Trump’s invocation is unfolding rapidly in federal courts:

1. Temporary Restraining Order (TRO)

   - In J.G.G. v. Trump, Chief Judge James E. Boasberg of the U.S. District Court for Washington, D.C., issued a TRO halting deportations under the act for 14 days while arguments are heard on its constitutionality.

2. Class Action Lawsuit

   - A class action lawsuit has been filed on behalf of all Venezuelan nationals affected by this policy. Plaintiffs argue that deportations under the act unlawfully target individuals without individualized assessments of their threat level.

3. Appeals Process

   - The Trump administration has appealed Judge Boasberg’s TRO to the D.C. Circuit Court of Appeals and requested an emergency stay pending appeal. Legal analysts expect this case could reach the Supreme Court if unresolved at lower levels.

4. Violation of TRO Allegations

   - Reports suggest that hundreds of Venezuelans have already been deported despite the TRO—a potential contempt-of-court issue that could result in further legal action against federal agencies.

Broader Implications: Calls for Repeal

Trump’s invocation has renewed calls to repeal the Alien Enemies Act altogether. Critics argue that it is an outdated relic prone to abuse and incompatible with modern constitutional principles.

Democratic lawmakers have introduced legislation seeking its repeal, citing its historical misuse during World War II and its potential for arbitrary applications like those seen today.

Congress holds full authority to revoke or amend this law but has historically hesitated due to concerns about limiting presidential powers during genuine national emergencies.

The revival of the Alien Enemies Act by Donald Trump marks a contentious moment in U.S. immigration policy and constitutional law.

While proponents claim it is necessary to address criminal threats like Tren de Aragua, critics see it as an overreach that unfairly targets vulnerable migrants fleeing violence and instability.

As legal challenges progress through federal courts—and potentially reach the Supreme Court—the outcome will have significant implications for executive power, due process rights, and immigration enforcement in America’s future.

Whether Congress will take steps to repeal or reform this controversial law remains an open question in this unfolding legal saga.