Criminal defense attorney Ben Van Severen explains the Alien Enemies Act of 1798:
The Alien and Sedition Acts were a series of four laws passed by the United States Congress in 1798 during the presidency of John Adams. The laws were enacted amid heightened tensions between the United States and France (specifically the Quasi-War, an undeclared naval war between the countries), and growing political divisions between the Federalist Party (which controlled the government) and the Democratic-Republican Party (led by Thomas Jefferson and James Madison). Many Federalists feared that French immigrants were too sympathetic to the French Revolution, which had grown increasingly violent, and were concerned about how that could translate stateside.
Four laws were part of the Alien and Sedition Acts:
- Firstly, the Naturalization Act. The Naturalization Act increased the time requirement for United States citizenship from 5 to 14 years, aiming to reduce immigrant (especially Irish and French) support for the Democratic-Republicans. The Naturalization Act was overturned by the Naturalization Act of April 14, 1802, which restored the 5-year residency requirement.
- Secondly, the Alien Friends Act. The Alien Friends Act allowed the president to deport any non-citizen deemed “dangerous.” The act was never used. It expired on March 3, 1801.
- Thirdly, the Sedition Act. The Sedition Act made it a crime to publish false, scandalous, and malicious writing against the government and its officials. The Sedition Act expired on March 3, 1801, and Thomas Jefferson pardoned those convicted under it.
- And finally, the Alien Enemies Act. The Alien Enemies Act permitted the arrest, imprisonment, or deportation of male citizens of a hostile nation during wartime. The Alien Enemies Act is the only part of the Alien and Sedition Acts that remains active.
Many modern critics believe the Alien and Sedition Acts violated the United States Constitution, specifically the First Amendment (which passed only a few years earlier, on December 15, 1791).
Use of the Alien Enemies Act prior to 2025
After 1800, and up until Donald Trump’s second term as president, the Alien Enemies Act was invoked three times. Each of these three times was during the course of an officially declared war:
- The War of 1812: The War of 1812 was a conflict between the United States and Great Britain from 1812 to 1815 rooted in various maritime and territorial conflicts. President James Madison issued a proclamation that required British subjects in the U.S. to register with federal marshals and authorized their deportation or detention if deemed dangerous. Officials used the law heavily in coastal locations, like Boston, New York, and Philadelphia, where many British merchants and sailors resided. Mass internment was rare. The actual number of Brits impacted by the law was never released.
- World War 1: President Woodrow Wilson imposed a host of restrictions on male Germans living in the United States. Later, those restrictions expanded to Austrians, and women from both countries. Restrictions included banning the ability to own firearms, mandatory registration with the government, and a requirement that Germans apply to live and work in designated restricted zones or leave the country. Germans who demonstrated “reasonable cause to believe to be aiding or about to aid the enemy” or violated any presidential regulations were arrested and imprisoned. Government officials arrested over 10,000 Germans and Austrians using the law.
- World War 2: After the attack on Pearl Harbor, President Franklin D. Roosevelt invoked the Alien Enemies Act to authorize the government to detain and intern “alien enemies.” Government officials forcibly interned approximately 110,000 Japanese Americans and 11,000 Germans and Italians in camps. FDR used Executive Order 9066 (1942) in conjunction with the act, achieving a similar result.
March 15, 2025: President Donald Trump begins using the Alien Enemies Act
President Trump’s administration released a statement on March 15, 2025 regarding the implementation of the Alien Enemies Act. A portion indicates the following:
Tren de Aragua (TdA) is a designated Foreign Terrorist Organization with thousands of members, many of whom have unlawfully infiltrated the United States and are conducting irregular warfare and undertaking hostile actions against the United States. TdA operates in conjunction with Cártel de los Soles, the Nicolas Maduro regime-sponsored, narco-terrorism enterprise based in Venezuela, and commits brutal crimes, including murders, kidnappings, extortions, and human, drug, and weapons trafficking. TdA has engaged in and continues to engage in mass illegal migration to the United States to further its objectives of harming United States citizens, undermining public safety, and supporting the Maduro regime’s goal of destabilizing democratic nations in the Americas, including the United States.
Later, the statement goes on to justify implementation of the law:
Over the years, Venezuelan national and local authorities have ceded ever-greater control over their territories to transnational criminal organizations, including TdA. The result is a hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States, and which poses a substantial danger to the United States. Indeed, in December 2024, INTERPOL Washington confirmed: “Tren de Aragua has emerged as a significant threat to the United States as it infiltrates migration flows from Venezuela.” Evidence irrefutably demonstrates that TdA has invaded the United States and continues to invade, attempt to invade, and threaten to invade the country; perpetrated irregular warfare within the country; and used drug trafficking as a weapon against our citizens.
Finally:
Based upon a review of TdA’s activities, and in consultation with the Attorney General and the Secretary of the Treasury, on February 20, 2025, acting pursuant to the authority in 8 U.S.C. 1189, the Secretary of State designated TdA as a Foreign Terrorist Organization.
What now?
On May 13, 2025, Judge Stephanie Haines, of the United States District Court for the Western District of Pennsylvania ruled that President Trump has the authority to declare TdA a foreign terrorist organization. She also ruled that the administration can deport members of the gang under the Alien Enemies Act.
Federal judges in New York, Colorado, and Texas have ruled against Trump’s use of the law to deport Venezuelans. Appellate courts will determine the difference in the district court opinions. The issue may eventually escalate to the Supreme Court of the United States.
Another important legal issue focuses on one of the requirements of the Alien Enemies Act. The original language included the following requirement:
… there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government.
We’re not at war with Venezuela. So, can the Trump administration sufficiently connect Tren de Aragua to the Venezuelan government, satisfying this requirement? We’ll see.
What do we think?
Due process is a fundamental legal principle enshrined in the United States Constitution that ensures fairness in government actions, especially when trying to deprive a person of life, liberty, or property. We’re criminal defense attorneys, so this means a lot to us. Due process guarantees that legal proceedings are conducted fairly and that individuals are given notice and an opportunity to be heard and defend against allegations lodged against them. The Fifth Amendment protects due process in federal court proceedings. The Fourteenth Amendment does the same in state proceedings.
Due process rights apply to non-citizens in the United States. This includes illegal immigrants, members of TdA, non-citizens who have committed crimes in the country, and all other citizens and non-citizens in the United States. This basic principle goes back to 1886, when the Supreme Court of the United States decided Yick Wo v. Hopkins. It’s the law.
Judge Haines herself expressed concern regarding deportations that happen “within a matter of hours” of arrest. While it’s impossible to determine how often this happens, due process cannot occur within a few hours. Unfortunately, it’s also impossible to determine how frequently this happens, but we do know that some individuals are not being provided their guaranteed rights. This is unacceptable, and due process must apply during proceedings seeking the removal of individuals (even those seeking to do us harm) from our country.