Trump's Reading of the Alien Enemies Act Defies the Usual Meaning of Its Terms
To justify the immediate deportation of suspected Venezuelan gang members, the president is invoking a rarely used statute that does not seem to apply in this context.
James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, has caught a lot of flak for temporarily blocking the deportation of alleged Venezuelan gang members under the Alien Enemies Act (AEA). As President Donald Trump tells it, Boasberg is a "Radical Left Lunatic of a Judge, a troublemaker and agitator" who is wrongly preventing him from "doing what the VOTERS wanted me to do." According to Trump, Boasberg's intervention was so egregious that he "should be IMPEACHED!!!"
A few hours after that Tuesday-morning Truth Social rant, Rep. Rep. Brandon Gill (R–Texas) followed through on Trump's suggestion, introducing an article of impeachment that charges Boasberg with "high crimes and misdemeanors." Specifically, Gill claims Boasberg "abused the powers of his judicial authority" by "interfering with the President's constitutional prerogatives" and his powers under the AEA, which in Gill's view gives Trump "sole and unreviewable discretion" to decide who qualifies as an "alien enemy" subject to immediate removal from the United States.
As Trump and Gill portray the situation, that understanding of the statute is completely uncontroversial. But if that were true, there would be no case for Boasberg to consider. Far from abusing his judicial authority, Boasberg is doing exactly what he is supposed to do as a federal judge: choosing between dueling interpretations of the law based on arguments and evidence presented in court—an adversarial process that continued at a hearing on Friday afternoon.
The attorneys representing the targets of Trump's AEA deportations argue that he is misapplying key terms in that rarely invoked 1798 statute, which is the last remaining vestige of the notoriously repressive Alien and Sedition Acts. The AEA applies only when "there is a declared war" between the United States and a "foreign nation or government" or when a "foreign nation or government" has "perpetrated, attempted, or threatened" an "invasion or predatory incursion against the territory of the United States." In those circumstances, it authorizes the president to deport "natives, citizens, denizens, or subjects" of that "hostile nation or government."
Until Trump took office in January, the AEA had been invoked only three times in 226 years: during the War of 1812, World War I, and World War II. All of those situations fell into the "declared war" category. The AEA has never previously been invoked in response to a putative "invasion or predatory incursion" outside the context of a declared war. That is the threat Trump cites to justify peremptorily deporting suspected members of the Venezuelan gang Tren de Aragua.
In a proclamation that Trump published last Saturday, he describes Tren de Aragua as "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." He says the gang "is closely aligned with, and indeed has infiltrated," the Venezuelan government, "including its military and law enforcement apparatus." He adds that "Venezuelan national and local authorities have ceded ever-greater control over their territories to transnational criminal organizations," including Tren de Aragua.
The result, Trump says, 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." This is the logic by which Trump counterintutively equates Tren de Aragua with a "foreign nation or government." If you buy that, you may also accept his claim that supected members of Tren de Aragua qualify as "natives, citizens, denizens, or subjects" of a "hostile nation or government." But you would also have to accept that the gang's "brutal crimes, including murders, kidnappings, extortions, and human, drug, and weapons trafficking," amount to an "invasion or predatory incursion" under the AEA.
All of this seems like quite a stretch. Trump does not claim to be at war with Venezuela. Nor does he claim that the Venezuelan government has mounted an "invasion or predatory incursion against the territory of the United States." And a criminal organization, even one that has corrupted or "infiltrated" a foreign government, is not a "hostile nation or government" as those terms are ordinarily understood.
Nor does Trump's understanding of "invasion or predatory incursion" make sense in the context of the AEA. "As the Supreme Court and past presidents have acknowledged, the Alien Enemies Act is a wartime authority enacted and implemented under the war power," Katherine Yon Ebright, a lawyer at the Brennan Center for Justice who specializes in national security issues, explained last fall. "When the Fifth Congress passed the law and the Wilson administration defended it in court during World War I, they did so on the understanding that noncitizens with connections to a foreign belligerent could be 'treated as prisoners of war' under the 'rules of war under the law of nations.' In the Constitution and other late-1700s statutes, the term invasion is used literally, typically to refer to large-scale attacks. The term predatory incursion is also used literally in writings of that period to refer to slightly smaller attacks like the 1781 Raid on Richmond led by American defector Benedict Arnold."
Ebright noted that "some anti-immigration politicians and groups urge a non-literal reading of invasion and predatory incursion so that the Alien Enemies Act can be invoked in response to unlawful migration and cross-border narcotics trafficking." They view the statute as "a turbocharged deportation authority." But that "proposed reading of the law," Ebright argued, "is at odds with centuries of legislative, presidential, and judicial practice, all of which confirm that the Alien Enemies Act is a wartime authority. Invoking it in peacetime to bypass conventional immigration law would be a staggering abuse." That is exactly what Trump is now trying to do.
On the same day that Trump officially invoked the AEA against alleged members of Tren de Aragua, Boasberg, who had already issued a temporary restraining order that blocked deportation of five named plaintiffs, held a hearing to consider extending the TRO to a class consisting of "all noncitizens in U.S. custody" who were covered by Trump's proclamation. The issue was urgent, since the Trump administration was on the verge of flying detainees to El Salvador, which happened that very evening. Boasberg heard from Lee Gelernt, the America Civil Liberties Union attorney representing the plaintiffs, and from Drew Ensign, the Justice Department lawyer representing the Trump administration.
"There is a lot of law about what constitutes a foreign government," Gelernt told Boasberg. "And I don't think the United States recognizes [Tren de Aragua] as a foreign government. They recognize Venezuela as a foreign government. I think that's the
historic understanding of the statute."
Gerlent also questioned the government's definition of "invasion or predatory incursion": "We think the Court certainly can review whether immigration constitutes some kind of invasion….We know of no historical precedent that would suggest that straight migration or noncitizens coming and committing crimes constitutes an invasion within the meaning of the statute or the Constitution."
While conceding "there isn't a lot of precedent on this," Ensign cited the Supreme Court's 1948 decision in Ludecke v. Watkins, which allowed the pre-deportation detention of a German citizen after the end of World War II. In that case, he said, the Court "recognized the very broad discretion of the president" in deciding whether the AEA's "declared war" provision still applied.
Boasberg conceded that "the courts can't question the president's power to remove enemy aliens or even his determination that a state of war continues to exist." But he said the Supreme Court in Ludecke "did seem to accept that courts could hear challenges to the construction and validity of the statute." If so, he asked Ensign, "doesn't it leave open the [possibility] that judicial review is available to look at whether certain preconditions have been met for the president to invoke the statute?"
Ensign argued that such an inquiry would involve "political questions" that are not subject to judicial review. He added that the case "cuts to the core of the president's
Article II powers" by challenging his authority over immigration and foreign policy.
Gelernt noted that Trump is not "invoking his inherent authority under the Constitution." Rather, he said, Trump is "invoking a specific statutory provision [for which] Congress has laid out very clear guidelines, and I think it would be fundamentally inconsistent with separation of powers for this Court not to be able to review whether those preconditions were met."
After hearing from both sides, Boasberg noted that the case presents "hard questions, close questions, and particularly hard questions on the expedited time frame that
we are talking about here." But he said the plaintiffs had "certainly presented a serious
question that this is justiciable because it's outside of what Ludecke talked about." He thought they had made a plausible case that "the AEA does not provide a basis for the president's proclamation given that the terms invasion and predatory incursion really relate to hostile acts perpetrated by enemy nations and commensurate to war." The plaintiffs also had plausibly argued that "the terms nation and government do not apply to non-state actors like criminal gangs."
Based on the arguments presented at that point, Boasberg said, "I don't think the AEA provides a basis for removal under this proclamation." But he emphasized the preliminary nature of his order, which was aimed at preventing "irreparable harm" to the plaintiffs while the case was pending. In the meantime, he noted, the plaintiffs would remain in custody, which should be sufficient to address the government's public safety concerns.
Boasberg issued a TRO that applies to "all noncitizens in U.S. custody who are subject to the March 15, 2025, Presidential Proclamation entitled 'Invocation of the Alien Enemies Act Regarding the Invasion of The United States by Tren De Aragua' and its implementation." He told Ensign what that meant: "Any plane containing these folks that is going to take off or is in the air needs to be returned to the United States….However that's accomplished, whether turning around a plane or not embarking anyone on the plane…I leave to you. But this is something that you need to make sure is complied with immediately."
Since then, Boasberg has been trying to figure out whether the Trump administration deliberately defied that order. That question hinges on the exact timing of the flights to El Salvador, where the deportees have been imprisoned. "The government is not being terribly cooperative at this point," Boasberg said at Friday's hearing, "but I will get to the bottom of whether they violated my order and who was responsible."
The flights that concern Boasberg did not include the five named plaintiffs, but they did include other Venezuelans covered by the broader TRO. On Monday, the White House described all of the deportees as "ruthless terrorist gang members," quoting a long list of Republican politicians who likewise welcomed Trump's effort to rid the country of "violent criminals," "rapists," "terrorists," "drug dealers," and "Tren de Aragua savages." But at least four of the named plaintiffs are asylum seekers who insist they are not in fact Tren De Aragua members. Two of them say they were identified as such based on nothing more than their nationality and misunderstood tattoos.
As Reason's Eric Boehm notes, those claims underline the importance of the due process that Trump is trying to avoid by invoking the AEA. At Friday's hearing, The New York Times reports, Boasberg "said he was concerned not only that President Trump has sought to use the [AEA] when there was neither an invasion taking place nor a declared state of war, but also that the people the government has sought to deport have no way of contesting whether they are actually gang members." He noted that "the policy ramifications of this are incredibly troublesome and problematic and concerning."
Those "policy ramifications," Trump argues, are beyond Boasberg's purview. But the central question presented by this case is whether Trump is acting within his authority under the AEA. The answer is far less clear than he and his allies imply.
