This article is republished from The Conversation, an independent and nonprofit source of news, analysis, and commentary from academic experts. Daniel Tichenor is a Professor of Political Science at the University of Oregon
As President Donald Trump during his 2024 presidential campaign, on March 15, 2025, an called the to justify deporting 137 Venezuelans he says are associated with a Venezuelan gang.
A federal judge the deportations and ordered the planes carrying Venezuelans heading to El Salvador to return. But the White House said that the court order came too late on a Saturday night, to El Salvador.
The Justice Department judge鈥檚 decision and carrying the immigrants to El Salvador were outside of the judge鈥檚 jurisdiction.
鈥淥opsie. Too late,鈥� Nayib Bukele, president of El Salvador, posted on the social media platform X on March 16, .
Legal analysts were where the planes carrying the Venezuelans were shortly before 7 p.m. on March 15, when the judge issued the order stopping their removal, in an attempt to determine if the Trump administration had violated the judge鈥檚 order.
The Alien Enemies Act empowers presidents to apprehend and remove foreign nationals from countries that are at war with the United States. U.S. presidents have issued executive proclamations and : during the War of 1812, World War I and World War II. All three instances followed Congress declaring war.
Why bother dusting off a 227-year-old law?
Invoking the Alien Enemies Act could for to quickly apprehend, detain and deport immigrants living without legal authorization in the U.S. That鈥檚 because the law lets presidents bypass court review of the deportation.
Repressive origins and populist backlash
The Alien Enemies Act traces back to the late 1700s, when the Federalists, an early political party, controlled Congress. The Federalists wanted as well as harmonious diplomatic and trade relations with Great Britain.
The Federalists became outraged when the French government began , which France was waging war against at that time.
The opposing , led by Thomas Jefferson, supported France in its fight against Great Britain.
The Federalists in Congress considered Jefferson鈥檚 pro-France position to be against U.S. interests. They also were troubled that the Democratic-Republicans were backed by thousands of in big cities such as Philadelphia and New York.
So in 1798, the Federalists tried to quell domestic opposition by passing the , 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 , 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 some federal laws unconstitutional. The populist backlash against the Alien and Sedition Acts helped propel Jefferson and Democratic-Republicans to victory in the . 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 with Great Britain, which was , including trade and territorial control of North America.
Madison invoked the act in 1812 that 鈥渁ll subjects of His Britannic Majesty, residing within the United States, have become alien enemies.鈥�
But rather than imposing mass deportations, Madison鈥檚 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 in April 1918.
Wilson used the Alien Enemies Act to impose on the residency, work, possessions, speech and activities of foreign nationals from places that the U.S. was at war with 鈥� Germany, Austria-Hungary, the Ottoman Empire and Bulgaria. U.S.-born women married to any people born in these places were also deemed 鈥渆nemy aliens.鈥�
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The U.S. Marshals Service carefully monitored about half a million Germans in the U.S. .
Another 6,000 German 鈥渆nemy aliens鈥� were in Georgia and Utah, where they were confined until after an 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, because the government considered them potentially dangerous. The U.S. government released these detainees after World War II ended.
The vast majority of were not held under the Alien Enemies Act. The government used a during World War II to intern most people of Japanese descent, some of whom were born in the U.S.
What鈥檚 very old is new again
pledged to fight Trump鈥檚 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 鈥渃onducting irregular warfare and undertaking hostile actions against the United States.鈥�
The American Civil Liberties Union and another legal nonprofit, Democracy Forward, on March 15, the same day the Trump administration announced it was invoking the act.
The Alien Enemies Act鈥檚 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 , 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 鈥渋nvasion or predatory incursion鈥� must be undertaken by a 鈥渇oreign nation or government鈥� in order for it to be invoked.
Yet Congress has 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鈥檛 meet the criteria in the Alien Enemies Act.
In the past, Trump鈥檚 with no clear evidence that the administration can justly claim that some Latin American governments, such as Mexico and Venezuela, are 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 that a president 鈥� simply saying that the country is being invaded by a foreign nation 鈥� 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鈥檚 sordid history.
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