Trump Cites 1798 Alien Enemies Act to Deport Tren de Aragua: NPR

In his ongoing pursuit to reduce illegal immigration and regulate immigration overall, President Trump has enacted a presidential measure invoking the Alien Enemies Act of 1798, a rarely-used statute that empowers the president to detain or deport nationals from an enemy nation during wartime. This action marks only the fourth occasion in U.S. history that a president has applied this act, and the first since World War II.

The directive specifically targets members of Tren de Aragua, a Venezuelan prison gang, and permits the swift removal of all Venezuelan citizens aged 14 and older identified as members of the group, who do not hold U.S. citizenship or lawful permanent residency.

The presidential directive states that these individuals “are liable to be apprehended, restrained, secured, and removed as Alien Enemies.”

A prior executive action from January, which classified Tren de Aragua as a foreign terrorist organization, paved the way for their member removal from U.S. soil under the Alien Enemies Act, claiming they, alongside MS-13 — a gang of Salvadoran origin not mentioned in Saturday’s directive — pose “an unusual and extraordinary threat to national security, foreign policy, and the economy.”

The White House announcement followed a federal judge’s issuance of a temporary restraining order preventing the removal of five Venezuelan individuals for 14 days, coinciding with the expected activation of the act. An urgent hearing is set for Saturday evening.

The expedited removal process permitted under the act means those affected by the president’s decree will not engage in the typical immigration court proceedings nor have the ability to claim asylum. Advocates are concerned that invoking the act might lead to the targeting and deportation of others, irrespective of their legal status or criminal history.

“The law does not stipulate that it must be limited to undocumented individuals or those who have committed crimes,” stated Katherine Yon Ebright, counsel on liberty and national security at the Brennan Center for Justice. “This is about wartime authority, not immigration authority, consistent with the nature of this act.”

It remains uncertain how the inclusion of minors in Saturday’s presidential action will affect legal disputes.

Trump has established the groundwork to revive the archaic law

Trump has signaled his intention to enact this action since early in his 2023 campaign, asserting at various rallies that he would “invoke the Alien Enemies Act to target and dismantle each migrant criminal network.” Immigration was a central theme of his campaign, during which he promised to initiate the largest deportation efforts in U.S. history.

At the Republican National Convention in July, the GOP pledged to “invoke the Alien Enemies Act to expel all known or suspected gang members, drug dealers, or cartel members from the U.S.” as part of the party platform.

Trump has consistently maintained that this act would provide “tremendous authority” for immigration enforcement. Detentions and deportations carried out under this act would not require following the immigration court system, allowing Trump to bypass conventional deportation procedures, according to Morgan Bailey, who served as deputy chief of staff at the U.S. Citizenship and Immigration Services during Trump’s initial term.

“The Aliens Enemies Act streamlines this process, eliminating the requirement for individuals to present their cases before a judge in immigration court,” Bailey explained. “Instead, deportation can occur based solely on whether the person is a national of a specific country.”

Legal challenges to enforcing the Act persist

The Alien Enemies Act remains the last of the four Alien and Sedition acts, the other three having been repealed or expired. It grants the president the power to detain, relocate, or deport non-citizens from a foreign nation or government recognized as an enemy during wartime.

The last invocation of this act occurred during World War II, during which 31,000 suspected enemy aliens, primarily of Japanese, Italian, and German descent, were interned in camps and military installations. The law requires a formal war declaration, a power solely reserved for Congress.

George Fishman, a senior legal fellow at the conservative Center of Immigration Studies and former deputy general counsel at the Department of Homeland Security during Trump’s first administration, strongly advocates for the act. Nevertheless, he acknowledges the legal difficulties in categorizing illegal immigration as an invasion and labeling gangs as foreign nations.

“Securing federal court approval for its application will be a challenging task,” Fishman remarked. “Thus far, federal courts have not recognized illegal immigration as fitting within the constitutional definition of invasion.”

However, he argued that the concepts of invasion and predatory incursion could still be reasonably debated in court.

Immigrant rights organizations, such as the American Civil Liberties Union, are actively opposing this initiative and have urged local governments to implement measures that would restrict the use of local resources for immigration enforcement.

Legal experts also point to precedents that could complicate this issue further.

Ebright highlighted that historical attempts to convert wartime powers into peacetime immigration enforcement have consistently failed in the courts.

“Challenges are expected from advocacy organizations, nonprofit sectors, and state governments… which could very well lead to courts overturning the use of the Alien Enemies Act,” Ebright stated. “However, it’s uncertain what the court’s response will ultimately be.”