Understanding the Alien Enemies Act
In light of recent developments regarding the Alien Enemies Act (AEA) and its invocation by the President, it is essential for people to understand what this law entails, its historical context, and the potential implications of its current use.
What is the Alien Enemies Act of 1798?
The Alien Enemies Act (AEA) was enacted in 1798 as part of the broader Alien and Sedition Acts during heightened tensions between the United States and France. It is the only one of the four still in effect today. The AEA grants the President authority to detain and remove noncitizens from a country deemed hostile to the United States if there is a declared war or if the foreign nation is engaged in an "invasion" or "predatory incursion" against the U.S.
This law applies to "all natives, citizens, denizens, or subjects" of the hostile nation or government, provided they are over 14 years old and not naturalized U.S. citizens. The law also stipulates that those affected should be given reasonable time to settle their affairs and leave the country unless they are involved in acts of hostility or crimes against public safety.
Historical Invocations of the AEA
Despite its existence for over 225 years, the AEA has only been invoked three times, each during formally declared wars:
War of 1812 – Used to address British nationals in the U.S.
World War I – Applied to German, Austrian-Hungarian, and Ottoman nationals.
World War II – Used to detain and deport Japanese, German, and Italian noncitizens. It also coincided with Executive Order 9066, which forcibly relocated U.S. citizens of Japanese descent to internment camps, though this order was separate from the AEA.
President Trump’s 2025 Invocation of the AEA
On March 15, 2025, President Trump issued a proclamation invoking the AEA to detain and deport Venezuelan citizens aged 14 and older who are identified as members of the transnational criminal organization Tren de Aragua (TdA). The U.S. Department of State designated TdA as a Foreign Terrorist Organization on February 20, 2025.
According to the Proclamation, Venezuelan authorities have allowed criminal organizations, including TdA, to expand their influence, effectively creating a "hybrid criminal state" engaged in an "invasion" or "predatory incursion" into the United States. The Proclamation asserts that individuals deemed members of TdA are engaging in "actual hostility" against the U.S. and, therefore, are subject to immediate removal without procedural due process protections, the ability to contest their alleged TdA membership, or time to organize their affairs.
Legal Challenges and the Current Status of the Proclamation
On the same day as the Proclamation, the American Civil Liberties Union (ACLU) and Democracy Forward filed a lawsuit, J.G.G. v. Trump, challenging its validity. The lawsuit argues that:
The AEA has only ever been applied during declared wars
The Proclamation violates due process by allowing removals without a legal review of the affected individuals’ TdA membership or immigration status.
A federal court issued a Temporary Restraining Order (TRO) blocking the administration from deporting individuals named in the lawsuit. The court later granted class certification, expanding the ruling to protect all noncitizens targeted by the Proclamation. While the hearing was occurring, over 200 alleged TdA members were deported to El Salvador, where they were reportedly sent to high-security prisons. Litigation continues before the federal district court in Washington, D.C.
Legal Questions and Concerns
Who is covered under the AEA and the Trump Proclamation?
The AEA applies to all non-naturalized nationals of a hostile nation or government, including lawful permanent residents (LPRs), Temporary Protected Status (TPS) recipients, and nonimmigrants. However, the March 15 Proclamation explicitly excludes Venezuelan LPRs from its scope. Dual U.S.-Venezuelan citizens should also be excluded.
Can the AEA be invoked in peacetime?
Historically, the AEA has only been used during declared wars. Congress holds the constitutional power to declare war, and past applications of the AEA have been tied to such declarations. The Trump Proclamation is the first attempt to use the AEA based on the "invasion" and "predatory incursion" clause. The plaintiffs in J.G.G. v. Trump argue that criminal activities like drug trafficking do not meet the legal standard of an "invasion."
Does the current Proclamation violate due process?
Invoking the AEA permits the government to circumvent the usual removal process, which is the primary due process concern.
• No ability to challenge TdA designation – Individuals facing deportation are not given a chance to contest claims of their membership in TdA.
• Risk of mistaken identity and wrongful deportation – Without legal proceedings, there is a risk that individuals who are not part of TdA could be wrongfully removed. The US government admitted administrative errors in removals occurring on the first day of reliance on the AEA.
• Impact on U.S. citizens – There is concern that U.S. citizens could be mistakenly detained and deported without proper legal review.
What This Means for Immigration Clients
The invocation of the AEA has created significant legal uncertainty, particularly for Venezuelan noncitizens in the U.S. If you or someone you know could be affected, it is critical to seek legal counsel and stay informed about the ongoing court proceedings in J.G.G. v. Trump.
For further guidance, consult an immigration attorney to understand your rights and available legal protections under current U.S. law.