Echoes of 1798: The Supreme Court, the Alien Enemies Act, and the Tightrope Walk of American Values

By David LaGuerre

It feels like we’re constantly digging through the nation’s attic these days, doesn’t it? Pulling out old laws, dusting them off, and trying to see if they fit our modern predicaments. Sometimes, what we find is a relic best left undisturbed, a reminder of past fears and overreaches. That’s the uneasy feeling surrounding the recent Supreme Court decision concerning the Alien Enemies Act – a law born in 1798, a time of powdered wigs and simmering conflict with France.

On April 7, 2025, the Court, in a narrow 5-4 ruling, gave the Trump administration a green light to use this centuries-old law to deport certain Venezuelan migrants alleged to be members of the Tren de Aragua gang. While the headlines might suggest a straightforward win for the administration’s hardline immigration policies, the reality, like most things involving the Supreme Court and fundamental rights, is far more complex and, frankly, more worrying. This isn’t just about immigration policy; it’s about due process, the reach of executive power, and the kind of nation we aspire to be.

From the Quasi-War to Modern Gangs: What is the Alien Enemies Act?

Before diving into the implications, let’s understand the tool itself. The Alien Enemies Act (AEA) was part of the infamous Alien and Sedition Acts passed under President John Adams. Amid fears of war with France (the “Quasi-War”), the Federalists pushed through laws aimed at suppressing dissent and controlling perceived foreign threats. While most of the Alien and Sedition Acts expired or were repealed, the AEA stuck around.

Its core provision, now found in 50 U.S.C. §§ 21–24, grants the president sweeping authority during a declared war or when facing an “invasion or predatory incursion” to apprehend, restrain, secure, and remove non-citizens aged 14 or older who are nationals of a hostile nation.

A Checkered Past

The AEA wasn’t just theoretical. It saw use:

• War of 1812: President Madison targeted British nationals.
• World War I: President Wilson used it against German and Austro-Hungarian nationals, leading to restrictions and arrests. [KEY FACTS: Over 10,000 individuals were arrested or investigated under the AEA during WWI, according to History Colorado.]
• World War II: Its most notorious application came under President Franklin D. Roosevelt against Japanese, German, and Italian nationals. While the mass internment of Japanese Americans (many of whom were U.S. citizens) was primarily authorized under Executive Order 9066, the AEA provided a legal framework for targeting “enemy aliens,” contributing to a dark chapter in American history. [Source: Brennan Center for Justice]

Fast forward to the 2020s. The Trump administration, seeking tools for expedited deportations, controversially argued that the activities of the Venezuelan gang Tren de Aragua constituted an “invasion” or “predatory incursion,” justifying the AEA’s use – the first significant invocation since WWII.

The Supreme Court Weighs In: A Fractured Decision

The administration’s move was challenged, leading to the recent Supreme Court case. Lower courts had blocked the deportations, citing due process concerns. The Supreme Court vacated that block, allowing deportations to potentially resume, but with crucial caveats.

The unsigned majority opinion stressed that even under the AEA, individuals are entitled to due process under the Fifth Amendment. This means they must receive notice and have a meaningful opportunity to challenge their detention and deportation, likely through habeas corpus petitions. However, the Court also made it harder to bring broad, systemic challenges, ruling that lawsuits must generally be filed individually in the jurisdiction where the person is detained (in this case, often Texas). [Source: NPR, USA Today]

Voices of Dissent

The four dissenting justices raised sharp alarms. Justice Sonia Sotomayor, joined by Justices Kagan and Jackson (and partially by Barrett), penned a fiery dissent, accusing the majority of granting “extraordinary relief” to the government and enabling actions that pose a “threat to the rule of law.” She argued the procedural hurdles imposed by the majority could effectively deny meaningful review for many. [Source: NBC News]

Justice Ketanji Brown Jackson, in a separate dissent, drew parallels to the infamous Korematsu decision that upheld Japanese internment, warning against the dangers of the Court using its emergency (“shadow”) docket to make rushed decisions on complex matters with profound human consequences.

Policing Immigrants: Security Blanket or Dragnet?

So, what does this mean on the ground? The ruling undeniably gives the administration more leeway to use the AEA for deportations. While the due process requirement acts as a potential check, the practical hurdles and the administration’s broad interpretation of “invasion” raise serious concerns.

The Specter of Profiling

Critics argue the administration’s focus on Venezuelan nationals and alleged gang members risks devolving into ethnic or national origin profiling. How are “gang members” identified? Reports suggest reliance on flimsy evidence, like tattoos, which can be culturally significant rather than indicative of criminal affiliation. [Source: NBC News] Invoking a law designed for wartime against nationals of a country we aren’t at war with, based on alleged gang affiliation, feels like a dangerous stretching of statutory language. It risks painting entire communities with the brush of suspicion.

Chilling Effects and Civil Liberties

The historical baggage of the AEA cannot be ignored. Its past use against specific ethnic groups serves as a stark warning. Allowing its revival in the context of gang activity – far removed from declared war – could normalize the use of extraordinary executive powers in routine immigration enforcement. This can create a climate of fear within immigrant communities, making people afraid to interact with authorities or access essential services. It chips away at the principle that justice should be individualized, not based on nationality or association alone.

Due Process Under Pressure

The core constitutional tension here revolves around the Fifth Amendment’s guarantee that no person shall be “deprived of life, liberty, or property, without due process of law.” The Supreme Court has long held this applies to non-citizens within U.S. borders, even in deportation proceedings (Reno v. Flores).

A Right on Paper, A Hurdle in Practice?

The Court affirmed this right but simultaneously erected procedural barriers. Requiring individual habeas petitions in potentially remote jurisdictions limits access to counsel and makes coordinated legal challenges difficult. Is this truly a “meaningful opportunity to be heard,” as due process requires? The dissenters clearly thought not.

Furthermore, the Court sidestepped the fundamental question: Does the AEA, written for declared wars and invasions by foreign powers, even apply to the activities of a transnational gang? The administration’s argument that TdA constitutes a “foreign nation or government” or that its members are agents of an “invasion” seems tenuous at best. Legal scholars point out that “invasion” in constitutional and historical context typically refers to armed hostilities by another sovereign power, not migration flows or criminal activity. [Source: Reason, Volokh Conspiracy] By not definitively ruling on this, the Court leaves the door open for future administrations to potentially expand the AEA’s use even further.

Balancing Security and Liberty: Finding the Right Path

Proponents of the administration’s actions argue they are necessary national security measures. The threat posed by transnational criminal organizations is real. No one disputes the need for effective law enforcement and border security.

However, the methods matter profoundly. Resorting to a 227-year-old wartime statute, stretching its definition, and applying it in a way that risks profiling and undermines robust due process is not a sustainable or just solution. It evokes echoes of past mistakes where fear trumped fairness. [KEY FACTS: The U.S. government formally apologized for the internment of Japanese Americans in the Civil Liberties Act of 1988, acknowledging it was based on “race prejudice, war hysteria, and a failure of political leadership.”]

True security and American values are not mutually exclusive. We can protect our borders and communities without sacrificing the core principles of fairness and due process that are supposed to define us. Relying on blunt instruments like the AEA, designed for a different world and a different kind of threat, is a shortcut that leads down a dangerous path.

Where Do We Go From Here?

The Supreme Court’s ruling is not the final word. Legal challenges will continue, likely focusing on the specific application of the AEA and the adequacy of the due process provided. Advocacy groups like the ACLU are preparing for these fights. [Source: Reason]

But the courts alone cannot solve this. This moment calls for a broader conversation about immigration policy, executive power, and the enduring relevance of our constitutional safeguards. Congress has a role to play in clarifying or reforming outdated laws like the AEA to ensure they cannot be easily misused.

Ultimately, the debate touches on fundamental questions: How do we balance security needs with our commitment to human rights and the rule of law? Can we address complex modern challenges without resorting to the blunt, often discriminatory, tools of the past? The answers will shape not only our immigration policies but also the character of our nation. We must choose wisely, guided by evidence, principle, and a clear-eyed view of both history and the future we want to build.