The Alien Enemies Act of 1798 is not merely a relic of a darker era in American history—it is a live wire capable of short-circuiting rights protected by US constitution. The act’s recent invocation by the Trump administration to summarily detain and forcibly disappear Venezuelan men into a notorious prison in El Salvador has pushed the US to the brink of a constitutional crisis.
On May 1, in the first ruling that tackled the merits of the issue, the US District Court for the Southern District of Texas ruled that that President Trump’s March proclamation “exceeded” what the act allows in a case brought by three Venezuelan men being held under the act and slated to be deported. Another court in Texas has ordered that a couple tagged by the government as “alien enemies” be released for lack of evidence.
In Colorado, a court order seeks to force the government to provide those detained under the act with 21 days of notice, deeming the 24 hours it plans to offer them inadequate. And in Washington DC the court has opened the door to contempt proceedings against administration officials responsible for not turning around deportation flights in March.
Watching the many active litigation efforts involving the act across the country, it seems inevitable that the Supreme Court, which briefly considered the issue twice in April, will be forced to take up this issue on the merits.
US obligations under international law have evolved considerably in the 227 years since the Alien Enemies Act was drafted. Today, the US is party to numerous human rights treaties that oblige the government to ensure respect for fundamental rights, including due process and freedom from discrimination, and to ensure that people removed from the US are not sent to countries where they would likely face persecution or torture. The Alien Enemies Act is ignorant of, and thus incompatible with, these international legal obligations.
Congress has a role to play here. Senators have introduced legislation that would withhold foreign assistance to El Salvador unless they get a report from the US government on what it’s doing to comply with court orders, but this won’t be enough. Members of Congress should be holding hearings that could reveal the terms of the Trump administration’s agreement with El Salvador and make clear that its oversight extends to due process for all detainees under the act. The Neighbors Not Enemies Act of 2025, introduced by Rep. Ilhan Omar and Rep. Mazie Hirono would repeal the act once and for all.
Trump’s use of the act for the first time outside of the context of a declared war relies on assertions that a Venezuelan criminal group is invading the US. These absurd claims, which are not borne out by the facts, were roundly dismissed by the district court ruling in Texas. Courts should also scrutinize Trump officials’ use of innocuous items like tattoos and Jordan sneakers to “validate” young Venezuelan men as members of this group.
One man, a barber, was apparently flagged because of a tattoo of a pocket watch on his arm showing the time of his daughter’s birth. Another, a baker, had a tattoo with a symbol of autism awareness and his younger brother’s name. According to the government’s “alien enemy validation guide,” half the points needed to designate someone as an “alien enemy” can come from tattoos.
Guidance issued by Attorney General Pam Bondi shows that law enforcement officers were told the act gave them a basis to enter “alien enemies'” residences without a warrant. In giving a green light to enter the home without adequate process, the administration has set itself on another collision course with the judiciary.
The 1798 act is an artifact from an era before our modern conceptions of international human rights were codified in treaties since ratified by the US government.
During the First World War, the act was used to authorize the detention of thousands of Germans, including a pair of Yale research scientists who specialized in studying moths and the conductor of the Boston Symphony Orchestra alongside 29 other members of his ensemble. Even though he was a Swiss citizen, the renowned conductor was forced into confinement at a fort in Georgia for over a year because he was born in Germany. At the time, many of the country’s classical musicians were Germans and so their internment yielded the surreal spectacle of an orchestra behind barbed wire playing Beethoven’s Eroica.
Similarly, during the Second World War, Jewish refugees escaping the Holocaust were jailed in Tennessee as “alien enemies” under the act on the basis of their German nationality. The government also detained and later deported hundreds of Peruvians of Japanese ancestry to Japan against their will. The act enabled sending people who had never even visited Japan or had left decades prior to an unrecognizable post-war Japan, including some children who were unable to speak the language.
These examples from the past illustrate how the law’s very design allows the president to act, according to a brief filed by the Department of Justice when the act was used during World War I, “on suspicion, rather than on proven facts.” Under Trump, that margin of discretion has taken on a new life. Since March the act has been used to arrest and transfer at least 137 men to a maximum security prison in El Salvador.
Andry, a gay hairdresser who fled Venezuela and had filed a claim for asylum with evidence, was apparently singled out for deportation because of delicate tattoos of a crown on each wrist with the words “Mom” and “Dad” on them. Now he is stuck in a notorious jail in El Salvador with no meaningful opportunity to contest his removal or even be told of how he came to be designated as an “alien enemy.”
Many of the others he was transferred with had pending asylum claims or “temporary protected status” under US law. Some of those flagged by the government as members of the group say that they were themselves victims whose family members had been murdered by the very gang.
The Alien Enemies Act offers a convenient excuse to circumvent due process, which President Trump is leveraging to supercharge his mass deportation machine. Congress should repeal it.
