CREATORS: Invoking the Alien Enemies Act Is About More Than Deportations

Matthew T. Mangino
CREATORS
March 25, 2025

The Alien Enemies Act was enacted in 1798 to combat spying and sabotage during tensions with France. The Act authorizes the president to deport, detain or place restrictions on individuals whose primary allegiance is to a foreign power and who might pose a national security risk in wartime.

The law is explicitly predicated on the existence of a declared war, invasion or predatory incursion. The text and history of the Act indicate that invasion and predatory incursion refer to acts of war, specifically armed attacks on United States soil. Former presidents have invoked the law only in times of war.

According to an October 2024 report from The Brennan Center for Justice at NYU School of Law, "There is no plausible basis for saying that migration or narcotics trafficking constitutes an invasion or predatory incursion."

Nevertheless, the Trump administration believes the Alien Enemies Act can be used to address unlawful migration and drug trafficking — acts that they frame as "a rhetorical, nonmilitary invasion or predatory incursion."

Based on that interpretation, the Trump administration invoked the Act to forcibly deport 238 alleged Venezuelan gang members. The administration asserted that the gang, Tren de Aragua, was invading the United States in order to justify their deportations under the law. The alleged gang members were flown to an El Salvador prison without due process hearings.

Some of those deported have no criminal records in the United States and no apparent ties to the gang. The Washington Post reported on four men deported who had moved to the Dallas area together, working in retail and food-production jobs to support their families back in Venezuela.

Upon an action filed by the ACLU, Federal District Court Judge James Boasberg temporarily blocked any deportations under the Alien Enemies Act, writing that the law refers to hostile acts perpetrated by another nation.

Boasberg blocked the administration's deportation action and ordered the two flights to be turned around in midair and returned to the United States. The Trump administration did not follow the order, stating later that the flights were outside of U.S. airspace and therefore outside of the judge's jurisdiction.

"You did tell them it was an order from me to turn the planes around ... to bring back people to the United States? You understood that," Boasberg said during a recent hearing according to CBS News. "Did you understand that when I said 'do that immediately,' I meant it?"

The Justice Department has argued that because Boasberg's verbal order was not reflected in a written order, it was not binding.

President Donald Trump raised the stakes by calling for the impeachment of Judge Boasberg. According to The New York Times, Trump described the judge on social media as a "Radical Left Lunatic."

A few hours later, Chief Justice John G. Roberts Jr. issued a statement, seemingly prompted by the president's comments, "For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision." The chief justice continued, "The normal appellate review process exists for that purpose."

Concern is growing among legal scholars. "If anyone is being detained or removed based on the administration's assertion that it can do so without judicial review or due process," Jamal Greene, a law professor at Columbia told The New York Times, "The president is asserting dictatorial power and 'constitutional crisis' doesn't capture the gravity of the situation."

The Trump administration has backed off for now. First, Trump told reporters he didn't sign off on the order directing the deportation, and Border Czar Tom Homan said that deportations of migrants under the Alein Enemies Act will continue, but he conceded in the meantime that he will obey the judge's order, according to The Hill.

Homan said during a recent NewsNation interview, "I'll wait until the DOJ and the courts fight this out as far as the Alien Enemies Act (and) how far we will go."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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