Every other Tuesday, the team behind Civics 101 joins NHPR’s All Things Considered Host Julia Furukawa to talk about how our democratic institutions actually work.
In March, the Trump administration invoked a wartime law, the Alien Enemies Act, to deport Venezuelan citizens it has accused of being gang members. The administration’s use of the act and methods of deportation, have been challenged in court.
Civics 101 Senior Producer Christina Phillips joined Julia to talk about the Alien Enemies Act and how it’s been used throughout U.S. history.
Transcript
To start, what is the Alien Enemies Act and why did it become law in the first place?
So the Alien Enemies Act is a wartime power that gives the president the authority to detain and deport citizens of a nation that is at war or threatening war or invasion against the United States. It was created in 1798, when the U.S. feared invasion from France, as a way to protect itself from France using their own citizens who were already on U.S. soil to coordinate an assault from within the United States.
This law was created because the United States at that time did not have any real national security to speak of, or really any meaningful federal law enforcement. This was before comprehensive immigration law, intelligence agencies, homeland security, etc. So [it was] sort of a blunt hammer to deal with this threat.
How many times has this act been used throughout U.S. history?
It's been used four times total – the War of 1812, World War I, World War II, and now in 2025. All previous times, the country was in a declared war with another country. After World War II, the U.S. apologized and paid reparations for the use of the Alien Enemies Act and other policies that led to the creation of internment camps.
During the war, and since World War II, the U.S. has passed a number of more modern laws that allow a president or an administration to detain and deport people, but in ways that require due process—meaning law enforcement has to provide a reason that a person is being detained. That person can then petition the court and challenge.
Let's talk more about how President Trump is using this act right now.
As you said, Trump is claiming the U.S. is being invaded by Venezuela through a gang known as Tren de Aragua, and that this gave him the right to detain and deport people from Venezuela that the administration suspected of being gang members immediately. Current immigration law that already exists does give the government grounds to deport someone for a number of reasons, including being in the U.S. without lawful status or being a member of a gang or even a terrorist.
But before that deportation can happen, there has to be a process that follows constitutional law. So that includes the right to an attorney, the right to challenge the charges in court, etc. Trump argued that by using the Alien Enemies Act, he didn't have to do those things. More importantly, he didn't wait for anyone, anyone being the courts, to tell him otherwise. He began deporting people within hours of invoking this act without telling them where they were going, or giving them a chance to contact their lawyers or notifying those lawyers if they already had one, and without letting them file a habeas corpus petition that says, “Hey courts, I'm being detained and deported for these reasons. I want that to be evaluated on its merits.”
And this was after some folks had filed lawsuits in federal court saying these deportations weren't following due process. It happened before the court had a chance to get a handle on who was being deported, when and why.
What have the courts said?
The courts, including the Supreme Court, said no, this is not allowed. Trump cannot use the Alien Enemies Act in this way. They cannot just deport people without due process. So the courts halted further deportations under the Alien Enemies Act until they can figure out what fair due process looks like.
It should be said that detentions and deportations have still been happening under other statutes across the country, many of which have also been challenged in court. So far, the Supreme Court has not ruled on whether or not the Alien Enemies Act is actually justified. In this case, though, most federal courts, lower courts have said it's not justified.
