Primer: The Alien Enemies Act

Day 103: One More Power Grab

Sunday Painting

Day 103 — March 15. 2025

Late in the day, Trump signed an Executive Order invoking the Alien Enemies Act of 1798, which is part of the Alien and Sedition Acts passed amid US hostilities with France.

His order would allow “expedited removal of all Venezuelan citizens 14 and older, deemed to be members of the organization [TdA], who are not U.S. citizens or lawful permanent residents.”

In other words, as opposed to undergoing the usual immigration or process, those targeted "are liable to be apprehended, restrained, secured, and removed as Alien Enemies.” According to advocates, those who are apprehended would not have a chance to argue that they are not part of the targeted gang. “[T]here isn't an aspect of showing or allowing the individual to have their day in court before the immigration judge…Rather, the person could be deported simply based upon the aspect of whether or not they are a national of a particular country."

If it took effect, Trump’s order would place countless Venezuelans at risk of “deportation without any hearing or meaningful review.” Needless to say, the precedent would allow Trump to, later, do the same thing with respect to immigrants hailing from other nations as well.

A court blocked the action within hours.

While this step was something that Trump warned he would do during the campaign, it’s only the fourth time in history that a president has invoked the act, and the first since World War II, when tens of thousands were swept up and detained in internment camps.

Legal scholars and advocates have already pointed out the many ways that Trump’s action here is NOT lawful. If he were to win his argument in court, it would amount to a massive and dangerous power grab: the conversion of explicitly “wartime powers” into a tool for “peacetime immigration enforcement.”

The Basics:

The Act provides that “whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, . . . all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies.”

What War?

Reading the law’s language triggers several obvious responses to what Trump is doing now:

• we are not in “a declared war between the United States and any foreign nation or government”

• there is not “any invasion or predatory incursion [being] perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government”

Trump and his lawyers argue that TdA is working in concert with the Venezuelan government, but as professor Steve Vladeck points out: “this argument is nonsense. Whatever else might be said about TdA, it is not a “foreign nation or government,” and there is no “foreign nation or government” that is currently undertaking an “invasion or predatory incursion” against the United States.”

Political Question?

So if that’s so clear, what can the Trump lawyers argue to win?

What they’re stuck arguing is that it’s Trump’s decision—and not courts—to determine if we are in the necessary wartime situation that allows for the Act to take effect as proposed. And that their determination should be deferred to (accepted) by courts, as opposed to overruled. This issue (the “political question” doctrine) has come up in other cases we’ve discussed here—for example, it’s why the Courts refuse to do anything about gerrymandering. (A majority of justices currently believe that process involves a “political question” they should not address, which allows the politicians to gerrymander away).

But Vladeck looks at the precedent from past uses of the Act and concludes that that is NOT what Courts have done in analogous cases: “even if the President is entitled to a modicum of deference, it should follow from the judicial precedents arising out of the War of 1812, World War I, and World War II that federal courts can provide meaningful judicial review of whether the statutory condition predicate—an “invasion or predatory incursion” by “a foreign nation or government”—has occurred.”

Bottom Line:

There’s much more to this, but those are the basics. What Trump is attempting to do here is a dramatic overreach of the law.

The good news is that makes his Order less likely to survive judicial scrutiny.

The bad news is that in the unlikely event it does succeed along the lines Trump is arguing (because it is either expanded to non-wartime circumstances, or that the executive is given deference to make such determinations), it would be a disastrous expansion of executive power.

Will keep you posted on developments.