President Donald Trump on Saturday invoked the rarely used Alien Enemies Act of 1798 to deport suspected members of a Venezuelan gang he accused of “unlawfully infiltrating” the United States hours after a federal judge temporarily limited its use.
The wartime law enables the president to quickly detain and deport migrants from a “hostile” nation, either during times of “declared war” or when a foreign government perpetuates an “invasion” or “predatory incursion” into the United States. Only Congress has the Constitutional power to declare war.
Legal experts have challenged Trump’s interpretation of the Alien Enemies Act, arguing that it was designed to only be used in times of war, and invoking it to deport immigrants could be unlawful.
Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School, wrote earlier this year that “illegal migration and cross-border drug-smuggling do not qualify as ‘invasion’ and certainly not as an invasion by a “hostile nation or government.”
Trump’s proclamation invoking the law accuses Venezuelan gang Tren De Aragua of “infiltrating” Venezuelan President Nicolas Maduro’s regime, perpetuating “irregular warfare” within the United States and using drug trafficking as a weapon against American citizens.
“Over the years, Venezuelan national and local authorities have ceded ever-greater control over their territories to transnational criminal organizations, including TdA [Tren De Aragua]. The result is a hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States, and which poses a substantial danger to the United States,” the proclamation reads.
Secretary of State Marco Rubio last month designated Tren De Aragua a foreign terrorist organization after Trump signed an executive order creating a process for him to do so.
Trump in the order accused the group of engaging in a “campaign of violence and terror” and flooding “the United States with deadly drugs, violent criminals, and vicious gangs.” In the same order, Trump directed federal officials to “make operational preparations” for the “implementation” of the Alien Enemies Act.
Hours before the White House published Trump’s proclamation, the American Civil Liberties Union and Democracy Forward filed a lawsuit on Saturday morning accusing the White House of preparing to imminently deport five Venezuelan men under the Alien Enemies Act.
“The Trump administration’s intent to use a wartime authority for immigration enforcement is as unprecedented as it is lawless,” ACLU lead counsel Lee Gelernt said. “It may be the administration’s most extreme measure yet.”
Chief Judge of the D.C. District Court James E. Boasberg in response to the lawsuit implemented a temporary restraining order preventing the Trump administration from deporting the five Venezuelans named in this lawsuit for at least 14 days, while court proceedings continue.
The Trump administration has appealed that ruling.
During a Saturday afternoon hearing, the judge was assured by Justice Department lawyers that the five Venezuelans ordered to remain in the country were not currently on deportation flights, though the government could not confirm if flights to Central America were actively taking place.
Trump’s invocation of the Alien Enemies Act fulfills a pledge he made on the campaign trail to use the law to target suspected gang members, drug dealers and cartel members.
“I’ll invoke immediately the Alien Enemies Act to remove all known or suspected gang members, the drug dealers, the cartel members from the United States, ending the scourge of illegal alien gang violence once and for all,” Trump said during a 2023 campaign speech in Dubuque, Iowa.
Trump is the first president in nearly a century to invoke the Alien Enemies Act, and the first to do so outside of a major conflict. It was last invoked in 1941 by President Franklin Delano Roosevelt, who used the law to target Japanese, German and Italian migrants during World War II, an act that the United States has since apologized for.
Sarah Dean and Lawrence Hurley contributed.
