Immediately after the Japanese bombing of Pearl Harbor on December 7, 1941, President Franklin D. Roosevelt proclaimed an “invasion” and invoked the Alien Enemies Act of 1798. Under that law, the Roosevelt administration held more than 31,000 non–U.S. citizens of Japanese, German, and Italian descent in internment camps over the course of World War II. The great majority of them were detained as “dangerous” enemy aliens, a designation made by the government based primarily on their citizenship or place of birth and without anything approaching due process of law.
Today, we are seeing alarming echoes of this history. Deported under the same statute, a group of 137 Venezuelan immigrants is being held indefinitely in a Salvadoran prison notorious for human-rights abuses. Although the Trump administration claims that they are members of Tren de Aragua, a Venezuelan gang, they have had no hearing to test that claim. The government has conceded in court filings that “many” of those removed under the Alien Enemies Act “have no criminal record in the United States”; some appear to have been targeted at least in part for having common tattoos, such as roses or crowns.
As detailed in a 2024 report that we produced for the Brennan Center for Justice, Roosevelt’s internment policy came to be seen as a stain on the nation’s honor, and the Alien Enemies Act itself fell into disrepute. By dusting off this disgraced law and using it to deny people their rights, President Donald Trump seeks to erase the moral and legal progress of eight decades. And unlike Roosevelt, who invoked the law after what was then the deadliest attack on the United States in history, Trump is abusing a wartime power during peacetime.
He may not succeed. The Supreme Court’s dramatic intervention last weekend, in which seven justices blocked additional deportations pending further review by the courts, was the culmination of a series of rulings against the administration. The ultimate outcome remains uncertain: The administration has shown a brazen willingness to sidestep the courts’ rulings, and the Supreme Court has yet to rule on whether Trump’s invocation of the Alien Enemies Act is lawful. Nonetheless, the strong response of the courts thus far gives reason for hope.
The Alien Enemies Act is the last remaining vestige of the notorious Alien and Sedition Acts. In contrast to the other laws from that controversial legislative package, the Alien Enemies Act had no expiration date and was not repealed. It gives the president sweeping powers to detain or deport noncitizens who are the natives or citizens of an enemy nation during a declared war, or an invasion, or a predatory incursion. The law allows the president to target these immigrants based solely on their place of birth. It does not guarantee them hearings or an opportunity to prove their loyalty, even if they have lawfully resided in the country for decades.
The law must be understood as a product of a very different America. In the late 1790s, Congress wanted to prevent foreign espionage and sabotage in the event that a naval conflict with France, the so-called Quasi-War, escalated to an all-out war. The young nation had few other legal or practical tools that could be deployed for that purpose: It had no law regulating the entry or removal of immigrants, only a nascent body of criminal law, and no federal intelligence agencies—not even a standing navy (a major concern during the Quasi-War). Moreover, the Constitution had no equal-protection clause, and conceptions of due process were rudimentary. Under these circumstances, Congress provided the president with a blunt hammer to address possible internal threats during wartime.
Circumstances today could not be more different, thanks to huge advances in the capacity of the federal government and in the sophistication of the nation’s laws and jurisprudence. Entire sections of the immigration, criminal, and intelligence codes are dedicated to rooting out national-security threats. The United States has hundreds of thousands of federal officials tasked with safeguarding homeland security, including tens of thousands who manage entries and deportations. An elaborate statutory and administrative framework governs entry, removal, asylum, and citizenship, and provides legal protections for immigrants. And our Constitution is understood to provide robust protection against discrimination and due-process deprivations.
In this modern era, Roosevelt’s wartime internment policies have been roundly condemned. More than 31,000 non-citizens were imprisoned based primarily, if not solely, on their nationality or origin. (Roughly 120,000 people of Japanese descent, most of whom were U.S. citizens, were incarcerated under different authorities, giving rise to the Supreme Court’s infamous—and now repudiated—Korematsu decision upholding the policy.) Although Roosevelt’s administration established citizen-led panels called “Alien Enemy Hearing Boards” for detained individuals to try to prove their loyalty, they were a far cry from due process. They typically lasted only 15 minutes; immigrants were not allowed counsel or informed of the allegations against them, and many of those allegations were rooted in rumor and prejudice rather than facts.
Congress and past presidents have extended reparations to noncitizens of Japanese descent who were interned under the law, as well as to U.S. citizens of Japanese descent incarcerated under other authorities, and acknowledged the “fundamental injustice” perpetrated against them. Various bills and resolutions have recognized that the U.S. government violated the rights of Italian and German immigrants as well. These measures have underscored the importance of preventing “similar injustices and violations of civil liberties in the future”—and lawmakers from both parties have questioned the “continued viability” of the Alien Enemies Act. In other words, until Trump issued his proclamation invoking the act on March 15, the United States seemed to have learned from its history.
Trump has done more than resurrect a constitutionally dubious and disreputable law. By invoking a wartime authority in service of a peacetime deportation agenda, he has gone beyond what even this draconian power permits.
Trump has declared that the United States is undergoing an “invasion” and “predatory incursion” by Tren de Aragua—one of the prerequisites for invoking the Alien Enemies Act. The historical record makes clear, however, that these terms refer to literal acts of war, not rhetorical “invasions” in the form of migration or drug trafficking. The Fifth Congress expressly enacted the law as an implementation of the rules of war under the law of nations. It was passed alongside a peacetime counterpart, the Alien Friends Act; in discussing the distinction between the two laws, James Madison wrote, “Invasion is an operation of war.” Before now, the Alien Enemies Act had been used only in major international armed conflicts: the War of 1812, World War I, and World War II.
When invoking the act, Trump referred to unlawful migration and gang violence as “irregular warfare” and drug trafficking as a “weapon.” A simple comparison shows the absurdity of the claim. The only other instance in which an “invasion” (rather than a “declared war”) triggered an Alien Enemies Act invocation was the Japanese military’s attack on Pearl Harbor, an assault that involved some 350 military aircraft and nearly three dozen armed submarines. In roughly an hour, the Japanese military destroyed a U.S. naval base and killed more than 2,000 service members. The activities of Tren de Aragua, a Venezuela-based crime organization that experts agree has a limited footprint in the United States, are simply not commensurate with the catastrophic military attack that plunged the nation into the largest conflict the world has ever known.
The Trump administration also maintains that Tren de Aragua qualifies as a “foreign nation or government” under the law—another prerequisite for invocation—because it is “closely aligned with, and indeed has infiltrated, the [Venezuelan] Maduro regime.” This claim is at odds with the findings of Trump’s own intelligence community. A classified assessment by the National Intelligence Council issued this month, which reflected the views of 17 of the 18 agencies that constitute the intelligence community (only the FBI dissented), concluded that Tren de Aragua does not coordinate with and is not supported by Venezuelan President Nicolás Maduro or senior government officials. In short, the premise that we are at war with Venezuela is pure fiction.
There is no need for Trump to play fast and loose with the Alien Enemies Act to address Tren de Aragua’s activities in the United States. The president already has ample authority under immigration law to deport members of violent criminal gangs. When the government seeks to deport someone on those grounds, however, that person is entitled to a hearing before an immigration court to ensure that there is evidence supporting the government’s assessment. And like all people in the United States, immigrants targeted for deportation have a constitutional right to due process, regardless of how they entered the country.
In his quest to strip immigrants of their legal rights, Trump is facing a barrier that Roosevelt didn’t: the courts. During World War II, courts refused to second-guess the administration’s determinations that immigrants from Axis nations were “dangerous.” In the first class-action lawsuit to challenge the Trump administration’s actions, Judge James Boasberg quickly issued a temporary restraining order barring the deportations. When the administration appealed, a three-judge panel upheld Boasberg’s order by a vote of 2–1. The two judges in the majority denounced the lack of due process and questioned whether the Alien Enemies Act was at all applicable.
Even though the Supreme Court reversed this ruling earlier this month on the technical ground that lawsuits challenging Alien Enemies Act deportations must be brought in the specific judicial districts where they arise, rather than in one nationwide suit, the justices emphasized that those targeted under the law are entitled to due process and the opportunity to seek judicial review. Lawsuits have since been filed in multiple districts, and several judges have ordered the administration to temporarily halt Alien Enemies Act deportations in their jurisdictions. When the Trump administration seemed poised to deport Venezuelans in northern Texas, the Supreme Court swiftly intervened, issuing an order at 1 a.m. on Saturday that demanded the administration cease deportations until further order of the Court.
The Supreme Court has not addressed the core question of whether the Alien Enemies Act allows the president to deport alleged members of Tren de Aragua, and it is not clear how the Court will ultimately rule on that issue. Moreover, the administration seems bent on finding ways to get around the courts’ orders. Indeed, in multiple cases challenging deportations, judges have raised concerns that the administration may have violated their orders; Judge Boasberg found probable cause to hold the administration in contempt of court. Nonetheless, the initial response of the courts suggests that they will not give a pass to a flagrant abuse of power. That does not bode well for Trump’s use of the Alien Enemies Act.
*Lead image credit: Illustration by The Atlantic. Sources: Getty; Stefani Reynolds / Bloomberg / Getty; Samuel Corum / Sipa / Bloomberg / Getty; Alex Peña/Getty
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