Alien Enemies Act: The wartime law Trump is using to justify deportations

In 1798, as the US prepared for a potential war with France, its Congress passed a set of laws designed to protect the young republic from foreign threats. Among them was the Alien Enemies Act — a wartime measure granting the president sweeping powers to detain or deport nationals of enemy states.

More than two centuries later, this long-dormant statute has been thrust back into the spotlight under President Donald Trump's renewed immigration crackdown. 

This obscure law, originally designed to prevent espionage, is now at the heart of his controversial strategy, being used to deport hundreds of alleged gang members from countries the US is not even at war with.

What is the Alien Enemies Act?

The law, still on the books, states that "whenever there shall be a declared war or any invasion or predatory incursion shall be perpetrated, attempted, or threatened" against the US, the president may order the removal of all "subjects of the hostile nation or government". 

Passed at a time when the US feared an invasion from France, it has only been used during wartime: the War of 1812, World War I, and most infamously, during World War II — when over 120,000 people of Japanese descent, many of them American citizens, were imprisoned in internment camps without trial.

Today, Trump's administration is invoking it against alleged members of the Venezuelan gang Tren de Aragua (TdA), arguing they are conducting "irregular warfare" against the United States.

In March, the White House said it deported 261 alleged Venezuelan gang members — 137 of whom were removed under the Alien Enemies Act. Many were flown to El Salvador and placed in one of the region's most notorious prisons.

Legal battles and backlash

The move has sparked a flurry of legal challenges, with critics accusing the administration of racial profiling and abusing executive authority.

"There's no question in our mind that the law is being violated," BBC quoted Lee Gelernt of the American Civil Liberties Union (ACLU), which is leading legal efforts to halt the deportations, as saying. "The US is not at war with Venezuela. There is no invasion."

Katherine Yon Ebright, counsel at the Brennan Center for Justice, called the policy "illegal," stating to BBC, "The only reason to invoke such a power is to try to enable sweeping detentions and deportations of Venezuelans based on their ancestry, not on any gang activity that could be proved in immigration proceedings."

Despite these concerns, the US Supreme Court ruled on 7 April that Trump could invoke the Alien Enemies Act to deport alleged gang members — but only if detainees are given a chance to challenge their removal.

This led to a legal tug-of-war. On 19 April, the Supreme Court intervened again, pausing a deportation of Venezuelans from Texas after lawyers argued they were not informed of their right to contest. Then, on 1 May, a Trump-appointed judge in Texas, Fernando Rodriguez, became the first federal judge to declare the administration's use of the law "unlawful".

But just two weeks later, another federal judge in Pennsylvania, Stephanie Haines, sided with Trump, permitting deportations but requiring a 21-day notice period and an opportunity to challenge removal in court.

Political policy

Trump has made no secret of his intent. In his January inaugural address, he promised to invoke the law to "eliminate the presence of all foreign gangs and criminal networks bringing devastating crime to US soil". His 15 March proclamation described TdA as a force threatening an "invasion," echoing the original language of the 1798 law.

Critics argue such language is incendiary and misleading. "When the executive branch wilfully disregards clear and specific court orders the checks-and-balances system established by the US Constitution is at risk," Elora Mukherjee of Columbia Law School told BBC.

Tensions have escalated. After a Washington DC judge tried to halt the removals, the White House dismissed the court's concerns as having "no lawful basis". Trump fired back on social media, calling the judge a "grandstander" and suggesting impeachment. His top aide, Stephen Miller, even floated the idea of suspending habeas corpus — a legal cornerstone that protects individuals from unlawful detention.

Venezuela's government condemned the deportations, saying they "unjustly criminalise Venezuelan migration" and evoke "the darkest episodes in the history of humanity, from slavery to the horror of the Nazi concentration camps."