The President’s Invocation of the Alien Enemy Act
The Context On March 14, 2025, President Trump issued a proclamation invoking the Alien Enemy Act1 to justify massive, immediate deportations of groups of allegedly illegal immigrants who came to the United States from Venezuela. These illegal immigrants were reportedly members of a terrorist group.
In his proclamation, the President asserted that (1) the group “unlawfully infiltrated” the United States, (2) they were “conducting irregular warfare ” and were “undertaking hostile actions” against the United States, and (3) they operated with the implicit approval of the government of Venezuela. He offered little factual support for these allegations, particularly for his claim that the group operated, in effect, as agents of the government of Venezuela.
Asserting a “solemn duty” to protect the American people,2 the President invoked authority to act under the Constitution and the laws of the United States, including the Alien Enemy Act. But he specified no constitutional provision authorizing his action. And he cited only the Alien Enemy Act and no other law of the United States as authority for either the proclamation or his action in enforcing the proclamation. Other than identifying the group as “narco-terrorists,” he cited no specific conduct of the group or its members. He characterized the group and its actions only in the statutory terms, that they made an “invasion of and predatory incursion into the United States.” He asserted no particularized underlying facts supporting this claim.
The Alien Enemy Act was one of four statutes comprising the original Alien and Sedition Acts, two of which became obsolete by operation of their terms. The Alien Enemy Act remains viable.3 What does the Act provide? It includes four sections, the first of which is the basis on which the President justified his invocation of the Act:
§ 21. Restraint, Regulation, and Removal
Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.4 The President is authorized in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart thereform; and to establish any other regulations which are found necessary in the premises and for the public safety.
§ 22. Time allowed to settle affairs and depart
When an alien who becomes liable as an enemy, in the manner described in section 21 of this title, is not chargeable with any actual hostility, or other crime against the public safety, he shall be allowed, for the discovery, disposal, and removal of his goods and effects and for his departure, the full time which is or shall be stipulated by any treaty then in force between the United States and the hostile nation or government of which he is a native, citizen, denizen, or subject; and where no such treaty exists, or is in force, the President may ascertain and declare such reasonable time as may be consistent with the public safety, and according to the dictates of humanity and national hospitality.5
§ 23. Jurisdiction of the United States courts and judges
After any such proclamation has been made, the several courts of the United States, having criminal jurisdiction, and the several justices and judges of the courts of the United States, are authorized and it shall be their duty, upon complaint against any alien enemy resident and at large within such jurisdiction or district, to the danger to the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President may have established, to cause such alien to be duly apprehended and conveyed before such court, judge, or justice; and after a full examination and hearing on such complaint, and sufficient cause appearing, cause such alien to be removed out of the territory of the United States, or to give sureties for his good behavior, or to be otherwise constrained, conformably to the proclamation or regulations established as aforesaid, and to imprison, or otherwise secure such alien, until the order which may be so made shall be performed.
§ 24. Duties of marshalls
When an alien enemy is required by the President, or any court, judge, or justice, to depart and to be removed, it shall be the duty of the marshall of the district in which he shall be apprehended to provide therefor and to execute such order in person, or by his deputy or other discreet person to be employed by him, by causing a removal of such alien out of the territory of the United States; and for such removal the marshall shall have the warrant of the President, court, judge, or justice ordering the same, as the case may be.
Observations Because the President cited no provision of the Constitution that empowers this action, the only justification for his action must come from the laws of the United States. And because he cited only one law–the Alien Enemy Act of 1798–justification must rest exclusively on that law. The constitutional and statutory viability of his proclamation must be judged solely under that single law. The legality of his invocation of the Act and his proclamation (President Trump’s action in making the proclamation and ordering the removal of the individuals from the United States) must be determined solely by their compliance with the provisions of that Act.
The President’s proclamation should not be entitled to any enhanced deference; the opposite is the case because the proclamation asserts no specific constitutional authority and seems to violate several constitutional provisions. This matter is purely legislative and a question of statutory construction.
Neither the statute involved nor the proclamation provide any fundamental procedural protections to enemy aliens. The application of this provision depends on the actual facts, but no such facts are recited in the proclamation.
No declaration of war is involved. And the assertion that this group operates under the authority of the government of Venezuela, or even with its approval, is at best attenuated.6 This brings us to the temporary restraining order issued by the district court for the District of Columbia, which seems to be a legitimate exercise of federal judicial power.
The President’ assertion is unlikely to withstand judicial scrutiny. The proclamation speaks mostly in conclusions and relies only on the general terms of the statute. Further, the Act seems to be directed to individuals, not to groups.7 The proclamation contains no allegations against individuals, only the group.
Both the proclamation and the rationale asserted in support of the proclamation’s application seem to focus on the nature of the group as comprising bad people. But the Act applies to those who are connected to an invading nation, regardless of whether they are bad people.8 In evaluating whether the proclamation is a valid exercise of power under the Act, the assertion that those to whom it is applied might be bad is irrelevant. The issue is whether the Act applies under the circumstances–namely, was the group, or were any of its members, somehow affiliated with a foreign nation or government. In this setting, the issue is whether the group was acting under authority of a foreign government, not whether the group consists of bad people.9
In essence, the issue is whether an “invasion or predatory incursion [was] perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government? If yes, the proclamation and subsequent removal actions are at least arguably valid. If no, both are invalid. A related issue may arise–whether the Alien Enemy Act is constitutional–which is not addressed in this blog piece.
1 50 U.S.C. 21 et seq.
2 That duty cannot be found in Article II of the Constitution. However, according to Article II, Section 3, his sworn duty is to “faithfully execute the Office of President of the United States” and “to the best of [his ability] preserve, protect, and defend the Constitution of the United States.”
3 Critics point to the age of the Act and its infrequent invocation as arguments against the use of the act. These are not legitimate arguments against the President’s power; the Act remains viable.
4 The first sentence of section 21 presents the issue which is the focus of this blog piece.
5 To date, no information is available regarding whether those removed were given time to settle their affairs per section 22. This section and section 23 include the only procedural protection provided by the Act. So far as I am aware, no treaty covers this situation.
6 Does the President’s reported praise of El Salvador in accepting those removed undermine or support his claim that those removed from the United States acted with the approval of the government of Venezuela?
7 See, in particular, section 22, which is directed to “an alien” and exempts from its coverage those who are not chargeable with actual hostility or a crime against public safety. See also section 23, which offers minimal procedural protection to “any alien enemy . . . .”
8 Section 22 demonstrates that some of those governed by the Act need not be bad people.
9 This characterization is meant to justify harsh action and inflame the passion of those unfamiliar with legal requirements, including the interpretation of statutes.
About the Author: Don LeDuc is the retired president and dean of Cooley Law School. His book, Michigan Administrative Law, is revised and published annually by the West Group. He is a member of Scribes, the American Society of Writers on Legal Subjects, and received the Golden Pen Award from the Legal Writing Institute. This article is part of a multi-part series discussing the meaning of the U.S. Constitution's words.