A country divided. The government, save the vice president, is held entirely by one party. Politicians characterize their opposition as agents of foreign governments, fomenting shadowy conspiracies, and beholden to immigrants, who they encourage to come to their shores so their votes can be used against the incumbents. The president’s nephew suggests that “[t]he grand cause of all our present difficulties may be traced…to so many hordes of Foreigners imigrating [sic] to America.” A future president concurs with these sentiments: there are “too many of these people here already.”
In response to this fear, in combination with escalating tensions from a foreign affairs crisis over trade interdiction and fears of war, legislators pass four laws to mitigate the threats: they more than double the time to naturalization; they allow the arrest, detention, and expulsion of non-citizens (one law for wartime, the other covering any person deemed “dangerous to the peace and safety of the United States, or…suspected [of] any treasonable or secret machinations against the government”); and they allow the arrest and punishment of anyone involved in writing, publishing, printing, or speaking “any false, scandalous and malicious writing or writings against the government of the United States.” The laws are seen by the administration as a necessary protection against threats to the country, a betrayal of the principles and virtues of the nation by the opposition and the public at large.
The country? The United States of America.
The year? 1798.
The passage of the Alien and Sedition Acts were met with outrage: Kentucky and Virginia passed resolutions against the laws (written by Thomas Jefferson, then vice president, and James Madison respectively, with Jefferson potentially exposing himself to treason charges by doing so). Demonstrations against the laws were held in multiple states, and liberty poles were raised as shows of opposition (some to be violently removed by Federalist militias). The reaction against John Adams and his party, and the anger over these laws, including at least twenty-five (and likely more than fifty) prosecutions under the Sedition Act, have been cited as causes of the Federalist loss in 1800.
The Sedition Act was repealed in 1802, and the Alien Friends and Naturalization Acts expired in 1800. Only the Alien Enemies Act (AEA) remained.
Invocation of the Alien Enemies Act
The Alien Enemies Act has been invoked three times: during the War of 1812, World War I, and World War II. In 1917, President Woodrow Wilson interned 6,300 primarily German non-citizens, the last of whom were released in 1920. President Roosevelt used the law in 1941 to declare non-citizens of Italian, German, and Japanese origin “alien enemies,” requiring them to register with the government and interning those thought to be “hostile to the US,” with little due process before incarceration. Some were subsequently deported to their country of origin; the imprisonment of 110,000 Japanese citizens in 1942 was ordered separately in Executive Order 9066. The past, and potential future, abuses enabled under the AEA have not gone unnoticed. Since 2019, the Neighbors Not Enemies Act has been introduced each year in Congress to repeal the AEA in an effort to prevent its use against immigrants based on their nationality. The bill has never made it out of committee.
Frequent mention of the AEA has been made in the news cycles of early 2025, in part because, during his campaign, now-US President Donald Trump announced his intention to invoke the AEA to target undocumented immigrants. However, the requirement for a “declared war…invasion or predatory incursion” by a “foreign nation or government” seemed to disqualify its use. On Inauguration Day, Trump signed an executive order designating the criminal gangs Tren de Aragua (TdA, originating in Venezuela), Mara Salvatrucha (MS-13, originating in the United States among El Salvadorean immigrant communities), and Mexican cartels “Foreign Terrorist Organizations” and “Specially Designated Global Terrorists,” echoing the language of the AEA regarding “invasion” and “predatory incursion.”
Fifty-three days later, on March 14, 2025, a presidential proclamation signed by the president (or possibly another party) invoked the AEA against members of TdA, alleging that the Venezuelan gang “is undertaking hostile actions and conducting irregular warfare against the territory of the United States…” The proclamation orders the detention and removal of any “Alien Enemy,” including “removal to any such location as may be directed by the officers responsible for the execution of these regulations consistent with applicable law.”
The Constitutional Challenge
The ensuing actions of the government have created, according to legal scholars, analysts, and advocates, at least one constitutional crisis, with another potentially on the way. The transport to and incarceration of 238 men in El Salvador’s Terrorism Confinement Center (CECOT) the day after the proclamation, despite an order to return the planes to the US while still in flight, and a further temporary restraining order covering of “[a]ll noncitizens in US custody who are subject to the […] [p]roclamation […] and its implementation” have become the subject of a criminal contempt determination, depending on the government’s response to Judge James Boasberg’s April 16, 2025, orders stemming from the original case. (The Department of Justice filed an appeal the same day.)
The current crisis stems from the refusal of the administration to return to the US one Kilmar Armando Abrego Garcia, who, while not renditioned under the AEA, was sent to El Salvador. Originally from El Salvador, Abrego Garcia received an immigration order preventing his deportation to that country because he would likely face harm if returned. While the US government initially admitted he was sent due to “administrative error,” it appears to be refusing to remedy this, despite a 9–0 US Supreme Court ruling instructing it to do so.
The government’s agreement to pay El Salvador to imprison immigrants in a complex with documented human rights abuses is without precedent. The executive branch’s refusal to obey a Supreme Court order isn’t: both Andrew Jackson (in Worcester v. Georgia) and Abraham Lincoln (in ex parte Merryman) ignored Supreme Court orders during their presidencies.
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The Fourteenth Amendment: Annotated
The refusal of the current administration encompasses multiple cornerstones of American constitutional government. In the originating case of the five Venezuelan men filed on March 15, 2025, the Department of Justice appealed the temporary restraining orders of the District and Circuit Courts that stopped the use of the AEA to the Supreme Court. The 5–4 decision found in favor of the government on the grounds that those subject to the AEA had to bring their complaint via habeas corpus and had to do so in the appropriate judicial venue where they were held (at the time of filing, Texas). But by being flown to, and then imprisoned, in a foreign country, the men in CECOT have no access to habeas corpus or due process by hearings. The AEA provides for the opportunity to “a full examination and hearing” before action being taken against non-citizens, as well as “be[ing] allowed, for the recovery, disposal, and removal of his goods and effects” (the proclamation, in fact, calls for the potential seizure and forfeiture of property.) This did not happen.
The Alien Enemies is an old law, written by men at the beginning of the history of the United States and meant to preserve power and prevent its dilution under the guise of saving a new country. You can read the law in its current version below, annotated with scholarship from JSTOR on its historical context, American immigration studies, and El Salvador’s government. As always, these linked materials are free to read and download.
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50 US Code Chapter 3 – ALIEN ENEMIES
§ 21. Restraint, regulation, and removal
Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies. The President is authorized in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety.
§ 22. Time allowed to settle affairs and depart
When an alien who becomes liable as an enemy, in the manner prescribed in section 21 of this title, is not chargeable with actual hostility, or other crime against the public safety, he shall be allowed, for the recovery, disposal, and removal of his goods and effects, and for his departure, the full time which is or shall be stipulated by any treaty then in force between the United States and the hostile nation or government of which he is a native citizen, denizen, or subject; and where no such treaty exists, or is in force, the President may ascertain and declare such reasonable time as may be consistent with the public safety, and according to the dictates of humanity and national hospitality.
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§ 23. Jurisdiction of United States courts and judges
After any such proclamation has been made, the several courts of the United States, having criminal jurisdiction, and the several justices and judges of the courts of the United States, are authorized and it shall be their duty, upon complaint against any alien enemy resident and at large within such jurisdiction or district, to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President may have established, to cause such alien to be duly apprehended and conveyed before such court, judge, or justice; and after a full examination and hearing on such complaint, and sufficient cause appearing, to order such alien to be removed out of the territory of the United States, or to give sureties for his good behavior, or to be otherwise restrained, conformably to the proclamation or regulations established as aforesaid, and to imprison, or otherwise secure such alien, until the order which may be so made shall be performed.
§ 24. Duties of marshals
When an alien enemy is required by the President, or by order of any court, judge, or justice, to depart and to be removed, it shall be the duty of the marshal of the district in which he shall be apprehended to provide therefor and to execute such order in person, or by his deputy or other discreet person to be employed by him, by causing a removal of such alien out of the territory of the United States; and for such removal the marshal shall have the warrant of the President, or of the court, judge, or justice ordering the same, as the case may be.
[Text of Alien Enemies Act taken from https://www.law.cornell.edu/uscode/text/50/chapter-3, sections 21–24. Original 1798 Act can be found at https://www.archives.gov/milestone-documents/alien-and-sedition-acts.]
