From Wartime Relic to Mass Deportation Instrument: The Alien Enemies Act July 21

Guest post by Christine Savino. Christine is a JD candidate at Cornell University and MSc in Migration candidate at Oxford University. Previously, she was a Fulbright Scholar in Taiwan for the US Department of State where she focused on cross-border displacement and human rights. She also read international law as a visiting student at Oxford University. 

Introduction 

In March 2025, President Donald J. Trump activated the statutory provisions of the Alien Enemies Act of 1798 (AEA), a legislative artefact originally conceived for deportation or detainment of citizens from enemy states during armed conflict. The instrument was utilised to initiate an expansive deportation operation aimed at Venezuelan nationals purportedly affiliated with the Tren de Aragua transnational criminal syndicate.  

Enacted during the quasi-war with France, the AEA historically functioned within the ambit of formally declared hostilities, with significant invocation limited to the War of 1812 and two World Wars. However, the Trump administration's attempted merger of immigration governance and national security, without a formal declaration of war authorised by Congress, is reflective of the post-9/11 "war on terror" where securitization emerged as a central framework for immigration control. Today, Trump is operationalizing the rhetoric of war and invasion as part of his total war on migrants. 

Invocation and Operationalisation 

The March 2025 presidential proclamation delineated Tren de Aragua as an existential and imminent threat to national security working in concert with the Venezuelan government, thereby justifying invocation of the AEA to circumvent existing statutory immigration frameworks. 

Within a matter of days, Immigration and Customs Enforcement (ICE) facilitated the removal of 238 Venezuelan nationals, with approximately 135 individuals expelled under the AEA and the remainder subjected to expedited removal under the Immigration and Nationality Act. The basis for these deportations were frequently derived from legally controversial methodologies, including physical appearance profiling (e.g., tattoos) and digital footprints, as judged through a twenty-point matrix requiring only minimal thresholds to satisfy gang affiliation. 

The data shows a radical rise in immigration control activity in concert with the administration's performative and symbolic media actions. Between January and June 2025, ICE executed approximately 100,000 arrests, a figure representing a twofold increase relative to decadal averages. DHS and Trump’s White House insists that ICE targets “criminals” and “criminal illegal aliens.” Likewise, being undocumented is a civil, not criminal, violation in the US, unless it follows a prior removal and re-entry or if one is prosecuted for first-time entry without inspection. Saliently, the total population of detained migrants without any criminal record has nonetheless experienced an 807% surge since Trump’s inauguration in January 2025, with nearly half of all ICE detainees lacking any criminal record and less than 30% having been convicted. As of early June, the aggregate detainee population exceeded 51,000, thereby surpassing the congressionally appropriated bed space ceiling of 41,500 by 140% and marking the highest figure since 2019. Deportations approximated 207,000 by mid-year, nearly equalling the annualised figures under the preceding administration. 

Judicial Reactions and Doctrinal Recalibrations 

The federal judiciary responded with prompt scrutiny. In a federal class action filed by several Venezuelan men threatened with removal under the AEA, Judge James Boasberg, of the US District Court for the District of Columbia, issued a temporary restraining order (TRO) in J.G.G. v. Trump. This halted removals under the AEA on the grounds of procedural errors, including deficient notice and infringements on constitutional rights. Despite this order, deportations were reportedly executed, precipitating warnings regarding potential contempt, for the illicit defiance of court rulings. The D.C. Circuit subsequently affirmed the TRO based on jurisdictional complications caused by cross-border enforcement. The Supreme Court later reinstated limited procedural due process protections, mandating that detainees receive "reasonable notice" and the right to petition for habeas relief in the jurisdiction of confinement. 

In A.S.R. v. Trump, adjudicated in the Western District of Pennsylvania, Judge Stephanie Haines permitted the theoretical applicability of the AEA but only under conditions of rigorous procedural safeguards, including a 21-day advance notice period and translation of legal documents.  

Other district courts issued divergent rulings. Judge Fernando Rodriguez of the Southern District of Texas entered a permanent injunction forbidding the AEA’s application within his jurisdiction, holding that its utilisation during peacetime was incongruous with constitutional jurisprudence and legislative intent. Courts in El Paso and Denver expanded procedural requirements and expressed concern regarding the instrumentalisation of a wartime statute for immigration enforcement. 

Human rights organisations, such as the Brennan Center for Justice and American Immigration Council, have filed amicus briefs and petitions for writs of habeas corpus, as well as legal documents submitted to courts to persuade judges, arguing that the use of the AEA to bypass protections in the INA undermines congressionally mandated procedures and risks unlawful detention. 

Looking Forward 

The 2025 use of the AEA to deport Venezuelan nationals reflects an expansion of executive power and the manufacture of wartime law through arbitrary interpretations of "invasion" by a group of nationals—many who were admitted lawfully and for humanitarian reasons. The executive branch’s reliance on the AEA for deportations, absent congressional authorisation, continues to threaten democratic norms. Subordinate courts rulings have ameliorated some due process concerns, and the Supreme Court issued an injunction halting deportations of accused Tren de Aragua detainees under the AEA in the Northern District of Texas. Thus, the constitutionality of the AEA’s application must continue to be adjudicated by the judicial branch. Otherwise, the AEA will continue to serve as artefact of authoritarianism—undermining the democratic principles and legal protections that form the foundation of the American rule of law. 

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