War or No War: Trump’s Dubious Invocation of the Alien Enemies Act
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The Alien and Sedition Acts were four laws enacted in 1798 by a Federalist Party-controlled Congress to significantly expand the federal government’s power over immigration, free speech, and political opposition. Amidst heightened tensions and fears of internal subversion during the Quasi-War, these laws were meant to secure US stability in the face of French revolutionary influences and Irish immigrant radicalism. The laws were framed as necessary national security measures because loyalty to the US was not guaranteed among immigrants. As a result, the executive branch received sweeping powers to get rid of foreign aggression and internal dissent. The Alien Enemies Act of 1798, specifically, gave the president authority to detain and deport people of enemy countries during wartime.
The other three laws of the Alien and Sedition Acts—the Naturalization Act of 1798, which increased citizenship requirements;the Alien Friends Act of 1798, which also allowed the imprisonment and deportation of non-citizens deemed dangerous to US security;and the Sedition Act of 1798, which criminalized malicious or false writing against the federal government—were all expired or repealed in the early 1800s. The Alien Enemies Act is still in effect today. It had only been invoked three times in history—until this past month.
The first time the Alien Enemies Act of 1798 was invoked was during the War of 1812. The United States had declared war on Great Britain due to its interference with American shipping. Anti-British sentiment ran high, especially in states like New York. President James Madison invoked the Act to detain and expel British nationals living in the United States. Thousands of British immigrants were subject to internment, deportation, or heavy surveillance. However, unlike later uses, the enforcement of the law was inconsistent. While some British nations were potentially expelled, others simply remained under strict monitoring. The use of the Alien Enemies Act in 1812 was an example of early expansion of executive power over immigrant and national security.
During World War I, anti-German sentiment skyrocketed. Germans were painted as spies, leading to widespread suspicion of these immigrants. In 1917, President Woodrow Wilson invoked the Act, ordering a government crackdown on non-naturalized German immigrants. Over 6000 German immigrants were detained in internment camps and faced harsh treatment without due process. Individuals were even arrested for minor offenses, such as speaking German in public or criticizing the US government. The Alien Enemies Act was weaponized alongside the government, Espionage Act and Sedition Act, restricting free speech and dissent. This period set a dangerous precedent for mass internment based on nationality.
During World War II, the invocation of the Alien Enemies Act by President Franklin D. Roosevelt in 1941 led to the internment of Japanese Americans and the restriction of Italian and German nationals. German and Italian immigrants faced travel restrictions and property seizures, and Japanese immigrants and Japanese Americans were forcibly removed from their homes and sent to internment camps. The Supreme Court upheld the internment in Korematsu v US; however, this case and the use of the Act remains a dark mark in American history. In fact, the Civil Liberties Act of 1988 formally apologized and compensated surviving Japanese internees.
While framed as a security measure, the Act has historically been used to target specific ethnic and political groups rather than actual threats. Racial and ethnic prejudices in 1812 (British), WWI (Germans), and WWII (Japanese, Germans, Italians) have shaped the enforcement of the law. This reflects a longstanding American tendency to frame immigration as a threat or risk, a pattern that has reappeared in the early republic, such as during the limitation of citizenship to free white people, or modern history, such as post-9/11 Islamophobia.
Trump’s recent invocation of the Alien Enemies Act to expel members of the Venezuelan gang Tren de Arangua appears to have followed in this anti-immigrant tradition. Trump’s basis for invoking the Act against Tren de Aguas is unclear, given that Tren de Aragua is not a government at war with the United States. While Trump claims that the gang is operating at the behest of Venezuelan president Nicolas Maduro, there is no clear link between Tren de Aragua and the Venezuelan government.
Trump’s invocation of the Act drew an immediate legal challenge which called into question his justifications. James Boasberg, U.S. District Judge in the District of Columbia issued an order to the administration to turn around the deportation flights carrying the Venezuelan individuals out of the U.S. under the Act, given that Trump’s authority to apply the Act was not well-established. However, the flights proceeded on their course and landed in El Salvador, in apparent defiance of Boasberg’s order. Boasberg subsequently directed the administration to provide a detailed account of exactly what time the flights took off, but the administration responded with a generic description that left out details of the exact timing that Boasberg requested. Boasberg escalated his sternness and set a deadline for the administration to provide a detailed account of the events. In early April, the Supreme Court lifted Boasberg’s order halting summary deportations, determining that the Trump administration could pursue deportations with certain limitations—namely that detainees be provided notice and allowed to seek relief under habeas corpus. The Court notably did not rule on the question of whether the Trump administration had grounds to invoke the Act in the first place. More recently, the Supreme Court temporarily barred the deportation of Venezuelans detained in northern Texas in response to an emergency appeal from the American Civil Liberties Union, as it appeared that deporations were about to resume.
The legacy of the Alien Enemies Act of 1798 reflects a broader pattern of xenophobic fearmongering and executive overreach. Trump’s recent invocation of this archaic law to deport immigrants, despite lacking a formal state of war and facing judicial opposition, exemplifies its potential for misuse. If left unchecked, the Alien Enemies Act could be manipulated for political or authoritarian purposes. The Act’s continued existence raises urgent questions about the balance between national security and civil liberties. As legal challenges to Trump’s actions unfold, the history of the Alien Enemies Act serves as a cautionary tale of how fear can be weaponized against immigrants and erode constitutional protections.
Lavleen Kaur Madahar is a junior concentrating in International and Public Affairs. She is a blog writer for the Brown Undergraduate Law Review and can be reached at lavleen_madahar@brown.edu.
Ashley Park is a first-year studying Political Science and International and Public Affairs at Brown University. She is an editor for the Brown Undergraduate Law Review and can be reached at ashley_h_park@brown.edu.