By Naureen Shah, Director of Policy and Government Affairs, Equality Division, ACLU National Political Advocacy Division
This piece was originally published by the ACLU.
This blog was updated on March 26, 2025.
Even before President Donald Trump took office, he repeatedly used “invasion” rhetoric to divide our communities and advance an anti-immigrant agenda. Last week, the administration took those efforts one step further by invoking the Alien Enemies Act – a centuries-old authority that has never been during peacetime— to bypass judicial review and swiftly send hundreds of people to a foreign prison, claiming they are Venezuelan citizens and members of the gang Tren de Aragua.
Recently a federal judge granted a temporary restraining order blocking the Trump administration from removing some immigrants from the United States using the Alien Enemies Act. The ruling stems from a lawsuit, J.G.G. v. Trump, the American Civil Liberties Union, Democracy Forward, and the ACLU of the District of Columbia filed challenging the president’s expected unlawful and unprecedented invocation of the act.
What is the Alien Enemies Act?
The Alien Enemies Act of 1798 was passed as part of the infamous Alien and Sedition Acts, a series of laws passed by the Federalist-led Congress over fears of an impending war with France. While the other three laws have since expired or been repealed, the Alien Enemies Act is the only remaining law still on the books.
The law has remained largely the same since its passage in 1798 and permits the president to apprehend, restrain, and remove noncitizens during a “declared war” or if the U.S. faces an “invasion or predatory incursion” by another country or foreign government. By its text, the law applies to “natives” of another country, including people who were born abroad but who are long-term residents of the U.S. Never before has a president invoked the law during times of peace to deny immigrants their right to due process. But, just last week, we saw the Trump administration use this law to justify the removal of Venezuelan people it says are gang members, without review by a court.
That’s what makes Trump’s invocation of the Act so dangerous. Trump is consolidating power and claiming unilateral authority to decide who is an “enemy” and who is not. People are being called the “enemy” even as the government admits in court that many of those it just deported under the Alien Enemies Act had no criminal convictions or even charges; some had evidently not even been detained as a flight risk, prior to their deportation.
Importantly, very little is sometimes known about a person or why they’re allegedly a risk. But that lack of clarity appears to be the point. A top Immigration and Custom Enforcement (ICE) official, in a sworn statement to the U.S. district court in our litigation, said “the lack of specific information about each specific individual actually highlights the risk they pose.” For the Trump administration, the lack of information is all the information they need.
What’s the Larger Impact on Immigrant Communities?
Across our nation, thousands of people of Venezuelan ancestry are living in fear that they or their loved ones could effectively be “disappeared” – arrested and sent to a foreign prison, with little or no ability to contact their families, let alone a lawyer who can help them secure release in a foreign country.
At the same time, Venezuelans are reeling from the Trump administration’s early termination of their Temporary Protected Status (TPS), which will affect about 350,000 people and which currently offers protection from deportation. Yet earlier this week, a Venezuelan couple with protected status was arrested outside their home in D.C. (on a separate legal basis). A video captures their two young children looking on – crying and screaming: “We didn’t do anything!.”
We should read Trump’s use of the Alien Enemies Act as another way this administration is deliberately escalating a climate of fear for immigrant communities – a climate so extreme that it has no precedent in our lifetimes. The implications of allowing the president to exploit the Alien Enemies Act would be staggering. Take, for example, Trump’s claim of an “invasion” of a criminal gang from Venezuela. If the government is allowed to deport these people to prisons overseas without due process, it will surely turn to others soon. Nonetheless, invasion rhetoric has been a linchpin of the Trump administration’s immigration agenda.
Everyday, we are hearing reports of children afraid to go to school, parents afraid to work, and families in need who are too afraid to go to a local food bank or community health clinic. The Trump administration's rhetoric is designed to divorce us from the lived reality of this senseless cruelty, even as it uses the same rhetoric to ground unprecedented legal claims.
When Has the Act Been Used in the Past?
The Alien Enemies Act has been used throughout history to target people merely on the basis of their ancestry or nationality. The act was first used during the War of 1812 against British nationals, and later used by President Woodrow Wilson during World War I against nationals of the German Empire, Austria-Hungary, and other foreign nations. The last time this wartime authority was invoked was during World War II, leading to the internment of noncitizens of primarily Japanese descent – the precursor to the internment program targeting Japanese Americans – and marking one of the most shameful moments in American history.
The act also also applies to an “invasion or predatory incursion,”which is a reference to military action on U.S. soil in the context of an actual or imminent war. There is, of course, no military invasion or incursion occurring in the United States right now, making the Trump administration’s invocation of the Act as lawless as it is unprecedented.
What Legal Actions Have Been Taken Thus Far?
On Saturday, March 15, the ACLU, Democracy Forward, and ACLU of D.C. filed a lawsuit on behalf of five Venezuelan nationals in an effort to block the Trump administration from using the Alien Enemies Act to arrest and deport Venezuelan nationals accused of being members of the Tren de Aragua gang. The lawsuit was filed after President Trump secretly invoked the Alien Enemies Act and before the administration made the invocation public. It resulted in a court-ordered Temporary Restraining Order (TRO) just hours later blocking the administration’s deportation of Venezuelan nationals and ordering any deportation flights to return immediately. The plaintiffs in our case include asylum seekers that fled Venezuela due to persecution for their political views.
Despite the court’s verbal and written orders, reports indicate that the government had transferred people to a prison in El Salvador notorious for its flagrant human rights abuses and indefinite detention. Reported conditions include solitary confinement in cells that are “completely dark.” The Trump administration did this in secret, so we don’t know for sure who was removed, but we do know for certain that there was no due process.
The question of whether the judge’s orders were violated is to be determined by the courts. Though President Trump, Vice President J.D. Vance, and some of their allies have launched rhetorical threats to the judiciary – even calling for the impeachment of a judge whose ruling they disagree with – there is a legal process to play out in this case that can be a powerful catalyst for justice. During an emergency hearing on Monday, March 17 and over the ensuing days, the government has repeatedly refused to provide basic information about its actions. A hearing on the merits of our clients’ request for relief was held on Friday, March 21 and arguments were heard before the court of appeals on Monday, March 24.
What Can Our Elected Leaders Do?
The history of the Alien Enemies Act serves as a reminder of how emergency powers can be abused to unfairly target people based on their nationality, ancestry, or even political ideology – and Trump’s invocation of this outdated law serves as a harrowing call to action to ensure our government does not repeat the mistakes of the past.
While our clients’ legal challenge continues to be heard in the courts, there are still important actions that our elected officials can take to limit the president’s ability to abuse this antiquated wartime authority to wrongfully target people based on their nationality. For example, the Neighbors Not Enemies Act – a bill that was reintroduced in January and endorsed by the ACLU – would fully repeal the Alien Enemies Act. Congress should mobilize the political will to pass this bill and repeal the Act once and for all.
Elected leaders must also be vigilant and speak out now against mass deportations and the president’s unlawful invocation of the Alien Enemies Act. While Trump and his surrogates are couching immigration enforcement in terms of crime, drugs, and cartels, it is all too clear that Trump’s agenda is to throw the lives of millions of our loved ones, neighbors, and co-workers into chaos, tearing families apart.
The ACLU is working alongside state and local government leaders to create a firewall ensuring that no state and local personnel or resources are tapped by the federal government to enact mass deportations and any other civil liberties violations. At the local level, we are also urging mayors and city councils to protect and support families targeted by Trump’s mass deportation drive and other attacks. The president alone cannot make good on his threats to conduct the largest deportation drive in our nation’s history, using the Alien Enemies Act and other legal authorities. The ACLU – and our more than 4 million members – are prepared to fight alongside states to combat any attacks on people who are immigrants and any other abuses of power.
