President Donald Trump’s unprecedented use of the Alien Enemies Act last week sparked intense legal and political debate, raising questions about executive power and the rule of law. The rarely invoked law, which allows the president to detain or deport foreign nationals from hostile nations during wartime, has only been used three times before, all during periods of declared conflict: the War of 1812, World War I, and World War II. Nevertheless, Trump justified the use of the law by claiming that Venezuela’s government controls the Tren de Aragua gang, which therefore makes Venezuela an “enemy nation” and allows the president to detain or deport the natives and citizens of the country it has accused as being members of Tren de Aragua.
To unpack the legal and constitutional implications of Trump’s actions, we spoke with Katherine Yon Ebright, a counsel in the Brennan Center for Justice’s liberty and national security program. She specializes in war powers and the constitutional separation of powers, making her uniquely positioned to analyze Trump’s extraordinary legal maneuver.
In this conversation with Documented, she explains why Trump’s interpretation of the Alien Enemies Act is exceptionally wrong, why the courts are likely to push back, and how this move could reshape immigration and national security law.
The Alien Enemies Act has been used three major times in U.S. history, during wars. But you highlighted last year in an explainer for the Brennan Center for Justice that it has been used after wars, too. So why, today, is Trump’s use of the Alien Enemies Act so unprecedented?
When the Alien Enemies Act was used in the post-war period of World War I and World War II, that was on the tail end of congressionally declared wars. So everyone agreed that there had been this major conflict; it was just a question of when precisely is the conflict over. And that requires some measure of political discretion. Though, there should come a time at which the courts look at the circumstances on the ground and they say, OK, the war is over.
But what’s really shocking in the present situation is that there is no war. There’s nothing resembling war. Obviously, the nation has not suffered a major armed attack by migrants or from Tren de Aragua; the president has not requested a declaration of war. So, to use a wartime authority and in a way that is clearly targeted for peacetime immigration enforcement, without the war, is what makes this really exceptional, shocking, and inappropriate.
The New York Times reported Thursday that to invoke the Act, President Trump claimed Venezuela’s government controls the gang [Tren de Aragua] to justify wartime deportation powers. Within this context, is the Trump administration using this Act correctly?
The law requires not only that the country be at war, but also that this war be with a “foreign nation or government.” That’s written into the text of the law that there must be a foreign nation or government adversary. And so what we’ve seen is the president say that this gang is a part of the Venezuelan government operating at the behest of the Venezuelan government, and thus that when this gang, quote, unquote, “invade[s]” the United States, it’s as if the foreign government of Venezuela is invading the United States.
And of course, this is a diplomatically fraught argument because it requires saying that the Maduro government has made the decision to go to war with the United States. But it’s also factually untrue, and that’s what the New York Times reporting uncovered.
We can see that this is a non-state actor as members of the public, but we, maybe, don’t have access to all of the classified information that the intelligence community has. But what the New York Times reported yesterday is that the intelligence community, based on its classified information, also thinks that Tren de Aragua is simply a non-state actor. It is not a part of the government of Venezuela. So when the president has said that Tren de Aragua is a foreign nation or government, insofar as it’s inextricable from the Venezuelan government, again, that’s not just diplomatically challenging, it’s a bad-faith lie. And it shouldn’t be credited by the courts.
What is the definition of an “invasion” in the current context Trump is making use of the Alien Enemies Act, versus the previous contexts in which the Act has been used?
The Alien Enemies Act applies in times of declared war, invasion or predatory incursion. And while invasion and predatory incursion aren’t defined in the law, there are parts of the laws— text, part of its context, and, of course, its history — that show unambiguously that this law was made for wartime and that thus the terms “invasion” and “predatory incursion” must refer to armed attacks. In the United States, under our Constitution, Congress — not the president — is the part of the government responsible for declaring war.
But of course, war can break out when the Congress is not in session, or the Congress can’t vote to authorize or declare the war, and so there is some power of the president to repel sudden attacks or invasions in the event that the Congress is not around to pass that authorization immediately. This is sort of the circumstance that this language of “invasion” or “predatory incursion” in the law is meant to capture. Like, what if the Congress is not in session? Can the president invoke this if there is an armed attack, a sudden attack on the United States territory?
This law, as it was debated, people talked about it as an implementation of the Law of War under the law of nations for 150 years. The courts have understood this law in litigation as an implementation of the Congress’ constitutional war powers, and so again, using this for immigration enforcement is manifestly inappropriate.
You just mentioned that using the Act for immigration is inappropriate. It appears though, based on what we are seeing, and even with the way things are progressing so far, that because the Alien Enemies Act has been used mainly during wartime, that doesn’t make it unlawful to implement during peacetime. It seems like the Trump administration has been able to successfully use it anyway. So, how is that possible?
I don’t think that the Trump administration has been successfully able to use it. What we saw was the administration tried to tee up deportations under the Alien Enemies Act very very quickly to coincide with the moment that the president invoked the law. And there was — the same day — a lawsuit brought by the American ACLU. And the ACLU argued, among other things, that the invocation of the law was inappropriate. They very, very quickly got a judge’s order to halt all implementation of the Alien Enemies Act to deport individuals in custody.
And by the time that the ACLU was presenting their case on an emergency basis to the judge, the Trump administration, having prepared to deport men immediately, already had planes in the air for deportations heading to El Salvador.
The judge ordered those planes to turn around, but they, of course, did not. Now there’s an ongoing proceeding before that same judge to question whether and why the administration failed to comply with his order, saying that the implementation of this law could not move forward.
The fact that the Act has been used so infrequently brings up the question about how the courts will be able to defend it. Can it be challenged — successfully — given that there isn’t enough precedence?
I think that there will be strong court opposition to an abuse of the Alien Enemies Act. We’ve already seen a district court or trial court in D.C. block the nationwide use of this law for deportations of men in custody. And I believe that there are at least five votes, maybe more, on the Supreme Court to strike down this abuse.
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