President Trump’s invocation of the Alien Enemies Act of 1798 to deport Venezuelan migrants suspected of being members of the Tren de Aragua gang quickly kicked off a legal battle.
A federal judge issued a temporary restraining order that blocked the use of the 18th-century law. However, on the same day as the March 15 order, three flights carrying more than 200 Venezuelan men were flown to El Salvador to be held in the nation’s maximum security prison.
White House officials told CBS News last week that 137 of those Venezuelans were expelled under the Alien Enemies Act. Another 101 were removed under what officials described as “regular” proceedings under the 1952 Immigration and Nationality Act, including people who allegedly signed deportation papers after crossing the border illegally, officials said.
The administration has appealed the judge’s order.
Here’s what to know about the Alien Enemies Act and how it has been used.
What is the Alien Enemies Act of 1798?
The Alien Enemies Act is one of the laws enacted as part of the Alien and Sedition Acts in 1798 under President John Adams and the Federalist-controlled Congress. At the time, the U.S. was anticipating a war with France.
The law states that when the U.S. is at war or facing an “invasion or predatory incursion” by another nation, the president can detain and deport citizens of the enemy nation without due process.
Two other laws in the Alien and Sedition Acts increased the number of years an immigrant needed to be in the U.S. to become a citizen and allowed the president to deport non-citizens deemed to be “dangerous to the peace and safety of the United States,” according to the National Archives. The fourth law, the Sedition Act, restricted speech that was considered critical of the government and was used to prosecute journalists and others.
Opposition to the Alien and Sedition Acts contributed to the defeat of the Federalists in the election of 1800, which was won by Thomas Jefferson, the Democratic-Republican candidate.
Jefferson allowed three of the four laws to expire, according to historians. But, there was no expiration written into the Alien Enemies Act, so it remained.
The Neighbors Not Enemies Act is a proposed law that would repeal the Alien Enemies Act. It was reintroduced in January by Rep. Ilhan Omar of Minnesota and Sen. Mazie Hirono of Hawaii, both Democrats.
How is Trump using the Alien Enemies Act?
In a proclamation invoking the Alien Enemies Act on March 15, Mr. Trump declared that Tren de Aragua, a Venezuelan gang, “is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States” and that all Venezuelan citizens over 14 years old who are members of Tren de Aragua and are not U.S. citizens or lawful permanent residents are “liable to be apprehended, restrained, secured, and removed as Alien Enemies.”
Chief D.C. District Judge James Boasberg, who temporarily blocked Mr. Trump from removing immigrants under the law, has questioned the legality of its use in this case.
“Despite the President’s determination otherwise, Tren de Aragua is not a ‘foreign nation or government,’ and its actions, however heinous, do not amount to an ‘invasion’ or a ‘predatory incursion,'” he wrote.
In a March 19 briefing, White House press secretary Karoline Leavitt said that “when you read the act … a predatory incursion is absolutely what has happened with Tren de Aragua. They have been sent here by the hostile Maduro regime in Venezuela. And the president, immediately upon taking office, designated TdA as a foreign terrorist organization.”
When else has the Alien Enemies Act been used?
The law has been invoked three other times in U.S. history: during the War of 1812, World War I and World War II.
In 1812, the Madison administration required British nationals in the U.S. to report information to the government, including their age, addresses, the length of time they’d been in the U.S. and their occupations, according to a document signed by then-Secretary of State James Monroe.
President Woodrow Wilson used the act in 1917 to limit the activities and speech of citizens of Germany and its allies in World War I. The use of the act led to the internment of more than 6,000 German nationals and “other enemy aliens,” the National Archives says.
Then, after the Japanese bombed Pearl Harbor in 1941, President Franklin D. Roosevelt invoked the Alien Enemies Act to detain citizens of Japan and the other Axis powers, Germany and Italy. But, Roosevelt also issued an executive order that allowed for the internment of Japanese Americans. More than 100,000 people of Japanese decent were sent to internment camps, which the federal government formally apologized for in 1988.
In 1948, the Supreme Court ruled in Ludecke v. Watkins, a case involving a German national who was ordered to be removed in 1946 under the Alien Enemies Act, despite the end of fighting in World War II. In a 5-4 decision, the high court dismissed the German national’s challenge, arguing “a state of war” remained and it was a matter of “political judgment” to determine if an individual could be removed under the Alien Enemies Act, which precludes judicial review.
“It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilities do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come,” Justice Felix Frankfurter wrote in the opinion.
In a dissent, Justice Hugo Black argued it is “nothing but a fiction” to say the U.S. was currently at war with Germany, and that “the 1798 Act did not grant its extraordinary and dangerous powers to be used during the period of fictional wars.”
Jennifer Jacobs,
Scott MacFarlane and
Jacob Rosen
contributed to this report.
