On March 15, 2025, President Trump signed a Proclamation and Order calling for the apprehension and deportation of members of the transnational gang Tren De Aragua, which originated in Venezuela. This order invoked authority under the Alien Enemies Act. What is this law, where did it come from, and what does it say?
Our focus here is on the Alien Enemies Act, not the March 15 Presidential Action. The Enemy Aliens Act, codified as 50 USC 21, et seq. The intent of the act was to give the President the authority to remove aliens loyal to an external invading force.
Alien and Sedition Acts
The Enemy Aliens Act was passed in 1798. We collectively refer to the Naturalization Act of 1798, the Alien Act, the Enemy Aliens Act, and the Sedition Act as the Alien and Sedition Acts. These were all passed at a time that war was expected with France. Fear that aliens (non-citizens living within the territory of the United States) would side with France in such a war helped spur the passage of these laws.
The political climate in 1798 was very divided, as it is today.
The Federalist Party controlled Congress and was concerned about the power of the Republican Party. New citizens also tended to favor the Republicans. In addition to concerns about an upcoming war with France, the Federalists saw an opportunity to try to limit the number of new citizens loyal to the Republicans and to keep their hold on power.
The Naturalization Act of 1798, among other things, increased the length of residency to become a citizen. This reduced the number of people who could become naturalized citizens (and potential Republican voters).
The Sedition Act made it a crime to speak out against the government or government officials, thus targeting Republican critics. Though the Supreme Court never ruled on the constitutionality of the Act, it is widely regarded as unconstitutional, and the Supreme Court notes that in the landmark case of New York Times v. Sullivan (1964).
The Alien Act provided Presidential authority to remove aliens deemed to be dangerous to public safety. This law was enacted with an expiration in two years. It was signed by President John Adams on June 25, 1798. The Alien Enemy Act covered a lot of the same territory as the Alien Act and was signed into law on July 6, 1798, with no built-in expiration.
Who Were The Parties?
The Federalist Party was the Party of George Washington (though party structure was developing during his presidency and he likely did not consider himself part of an organized political party), Alexander Hamilton, and John Adams. The Federalists tended to favor a stronger, more involved national government. They also tended to favor manufacturing and urban interests.
The Republican Party was the party of Thomas Jefferson and James Madison. Republicans tended to favor smaller national government. They tended to favor rural interests. The Republican Party in 1798 is not the same as the today’s Republican Party founded in 1854.
Eventually, the Federalist Party faded into history, in part as a reaction to the overreach of the Sedition Act. In the 1820s, the Republican Party split into National Republicans and Democratic-Republicans (it is inappropriate to use that term for earlier periods). The Democratic-Republicans are the forerunners of today’s Democratic Party, with Andrew Jackson as the first Democratic-Republican President.
The Alien Enemies Act
We have linked the full text of the law above. Here, we will go through its three sections. It is worth noting, however, that there are many legal authorities for deporting aliens from the United States. This law is only one, and it has been discussed at length since President Trump’s March 15 proclamation invoking it.
Section 1
Section 1 of the Alien Enemies Act is codified as 50 USC 21-22.
50 USC 21
The law grants special powers to the President of the United States
[w]henever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government
Notice that there are three possible circumstances for invoking the law
- Declared war
- An invasion, including attempts and threats, by any foreign nation or government
- A predatory incursion, including attempts and threats, by any foreign nation or government
A declared war is pretty easy to see. Congress would have voted on and passed a declaration of war. How do we know when there is a qualifying invasion or predatory incursion?
The law states that “the President makes public proclamation of the event.” The statute, thus, gives the President the authority to make that determination. The issue is a political, not a legal, one.
When the law has been invoked, it provides that
all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.
Someone who is not naturalized is no longer an alien, so this law can’t apply to them. Any alien over the age of 14 who has loyalty to the foreign power can be arrested, held, and deported. Further, the President has the authority to determine
the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety
Basically, the law gives the President the authority to decide what will become of the enemy aliens.
50 USC 22
There are some protections for the rights of the enemy aliens who have not engaged in violence. In particular, they
shall be allowed, for the recovery, disposal, and removal of their goods and effects, and for their departure, the full time which is, or shall be stipulated by any treaty, where any shall have been between the United States, and the hostile nation or government
So, non-violent enemy aliens are allowed to retrieve their property, or have it retrieved. They have the privilege of doing so according to terms of any treaty between the United States and the hostile power on this question.
If there is no treaty, the President is vested with the authority to
ascertain and declare such reasonable time as may be consistent with the public safety, and according to the dictates of humanity and national hospitality.
Section 2 – 50 USC 23
Section 2 concerns the role of courts and others in the process once the law has been invoked.
Criminal courts are vested with “the duty” to
upon complaint against any alien enemy resident and at large within such jurisdiction or district, to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President may have established, to cause such alien to be duly apprehended and conveyed before such court, judge, or justice
So, if someone brings a complaint to a criminal court that someone is an enemy alien, the court must issue arrest warrants and bring the person before the court. Notice, too, that they must adhere to the “regulations which the President may have established” when the law was invoked. The courts are, thus, bound to enforce the Presidential directive.
After the suspected alien enemy is brought to court, there can be hearings to examine the truth of the complaint. Upon “sufficient cause,” the court must then order the person to be removed from the United States, or otherwise restrained in accordance with the Presidential invocation of the law.
Section 2, then, provides a typical judicial route for ordering the removal of enemy aliens once the Act is invoked by the President.
Section 3 – 50 USC 24
In the United States Code, the wording from section 3 of the original statute has been altered somewhat. We will following the codified version of the language here.
While section 2 provided for judicial removal orders, section 3 makes clear that the orders may be judicial or executive. Once either the President, or a court, has ordered removal, federal marshals or their deputies are required to remove the person from the United States.
When an alien enemy is required by the President, or by order of any court, judge, or justice, to depart and to be removed, it shall be the duty of the marshal of the district in which he shall be apprehended to provide therefor and to execute such order in person
The marshal is to act upon
the warrant of the President, or of the court, judge, or justice ordering the same, as the case may be
Clearly, section 3 provides two parallel paths to ordering deportation. One is by executive decision. The other is by judicial action.
Constitutional Concerns
Some people raise concerns that the process may violate due process requirements. Indeed, the especially broad power afforded on the President to act largely without judicial restraint is a legitimate concern. The Fifth Amendment provides that no person shall
be deprived of life, liberty, or property, without due process of law
Under the terms of the Alien Enemies Act, no one is deprived of life. Non-violent enemy aliens are afforded the possibility of retrieving their property. Theoretically, detention is an option under the law, which would be a deprivation of liberty. Deportation, however, is revocation of a privilege of being in the United States.
Constitutional questions may arise then for detention depriving someone of liberty if they are incarcerated in the United States instead of deported. They may also arise for deprivation of property for violent enemy aliens.
Next week, we will turn our attention to what courts have said about the law, and the role of courts in enforcing the law.