Historic Wartime Law Deployed for First Time Since World War II in Controversial Immigration Enforcement Move
President Trump has taken an unprecedented step in his immigration enforcement agenda by invoking the Alien Enemies Act of 1798, a rarely used wartime authority that allows for expedited detention and deportation of foreign nationals deemed threats to national security. The presidential action specifically targets members of Tren de Aragua, a Venezuelan prison gang, marking only the fourth time in American history this law has been used and the first application since World War II.
Controversial Use of 18th Century Wartime Authority
The directive authorizes the immediate apprehension and removal of Venezuelan citizens age 14 and older who are identified as members of Tren de Aragua and are not U.S. citizens or lawful permanent residents. According to the presidential action, these individuals “are liable to be apprehended, restrained, secured, and removed as Alien Enemies.”
This move follows Trump’s January executive action designating Tren de Aragua as a foreign terrorist organization, which established the legal framework for Saturday’s invocation of the 1798 law. The January order declared that Tren de Aragua and MS-13 (a gang with Salvadoran origins not included in Saturday’s action) “present an unusual and extraordinary threat to the national security, foreign policy, and economy.”
The White House announcement came just hours after a federal judge issued a temporary restraining order against the removal of five Venezuelan men for 14 days under the expected invocation of the act, with an emergency hearing scheduled for Saturday evening.
Legal Challenges and Constitutional Questions
Legal experts have raised significant concerns about the application of this wartime power during peacetime and its potential for broader use beyond the stated targets. Katherine Yon Ebright, counsel at the Brennan Center for Justice, noted, “There’s nothing in the law itself that would require it to be limited to undocumented individuals or individuals who have committed crimes. It’s not about legal status, consistent with the idea that it’s a wartime authority, not an immigration authority.”
The Alien Enemies Act requires a formal declaration of war—which only Congress has the authority to issue—raising constitutional questions about its current application. The law was last used during World War II, when approximately 31,000 suspected enemy aliens of Japanese, Italian, and German descent were placed in internment camps and military facilities.
George Fishman, senior legal fellow at the Center for Immigration Studies and former deputy general counsel at the Department of Homeland Security during Trump’s first administration, acknowledged the legal hurdles, stating, “It’ll be an uphill struggle to get the federal court to sign off on its use. Federal courts have never up until now bought off en masse illegal immigration as getting the definition of invasion under the US Constitution’s use of the term.”
Bypassing Traditional Immigration Processes
A key aspect of the Alien Enemies Act is that it allows the administration to bypass the traditional immigration court system. Morgan Bailey, who served as deputy chief of staff at U.S. Citizenship and Immigration Services during Trump’s first term, explained that under normal circumstances, individuals facing deportation would appear before a judge.
“Under the Aliens Enemies Act, this aspect of going through each of these steps is abbreviated, and there isn’t an aspect of showing or allowing the individual to have their day in court before the immigration judge,” Bailey said. “Rather, the person could be deported simply based upon the aspect of whether or not they are a national of a particular country.”
Immigrant rights groups, including the American Civil Liberties Union, are already mobilizing to fight the effort and have urged local governments to limit the use of local resources for immigration enforcement assistance.
