Alien Enemies Act: what is it and can Trump use it to deport gang members?

What are the origins of the act?

In 1798, with the US preparing for what it believed would be a war with France, Congress passed a series of laws that increased the federal government’s reach. Amid worries that immigrants could sympathise with the French, the Alien Enemies Act was created to give the president wide powers to imprison and deport noncitizens in time of war.

Since then, the act has been used just three times: during the war of 1812, the first world war and the second world war.

During the second world war, with anti-foreigner fears sweeping the country, it was part of the legal rationale for mass internment of people of German, Italian and Japanese ancestry. An estimated 120,000 people with Japanese heritage, including those with US citizenship, were incarcerated during the war.

Why is Trump using it now?

For years, Trump and his allies have argued that America is facing an “invasion” of people arriving illegally. In his inaugural address, Trump said the act would be a key tool in his immigration crackdown.

“By invoking the Alien Enemies Act of 1798, I will direct our government to use the full and immense power of federal and state law enforcement to eliminate the presence of all foreign gangs and criminal networks bringing devastating crime to US soil,” he said. “As commander in chief, I have no higher responsibility than to defend our country from threats and invasions.”

In his declaration on Saturday, Trump said Tren de Aragua “is perpetrating, attempting, and threatening an invasion of predatory incursion against the territory of the United States”. He said the gang was engaged in “irregular warfare” against the US at the direction of the Venezuelan president, Nicolás Maduro.

Last month, the Trump administration designated Tren de Aragua and seven other Latin American crime organizations as “foreign terrorist organizations”.

What do critics of the move say?

Critics say Trump is wrongly using the act to target non-state actors, rather than foreign governments. Civil liberties organizations have accused Trump of invoking the 1798 act unlawfully during peacetime to accelerate mass deportations and sidestep immigration law.

“Invoking it in peacetime to bypass conventional immigration law would be a staggering abuse,” the Brennan Center for Justice wrote, calling it “at odds with centuries of legislative, presidential, and judicial practice”.

“Summary detentions and deportations under the law conflict with contemporary understandings of equal protection and due process,” the Brennan Center said.

Congress’s research arm said in a report last month officials may use the foreign terrorist designations to argue the gang’s activities in the US amount to a limited invasion. “This theory appears to be unprecedented and has not been subject to judicial review,” the Congressional Research Service said.

The Venezuelan government has not typically taken its people back from the US, except on a few occasions. Over the past few weeks, about 350 people were deported to Venezuela, including some 180 who spent up to 16 days at the Guantanamo Bay naval base.