Overview

Invocation of the Alien Enemies Act — Deportations to El Salvador

The Statute and Its Invocation

The Alien Enemies Act, enacted as part of the Alien and Sedition Acts of 1798, was designed to allow the President to detain or remove foreign nationals from enemy nations during wartime. It is the same law that was used during World War II to justify the internment of Japanese, German, and Italian nationals in the United States. The act had been invoked only three previous times in U.S. history, most recently during World War II to hold Japanese-American civilians in internment camps.

Trump's proclamation asserted that Tren de Aragua "is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States" and that the gang was "undertaking hostile actions and conducting irregular warfare against the territory of the United States." It further claimed that the group was operating "in conjunction with Cártel de los Soles, the Nicolas Maduro regime-sponsored, narco-terrorism enterprise based in Venezuela." The administration's legal theory required treating Tren de Aragua simultaneously as a quasi-governmental entity — equivalent to a foreign nation — and as an agent of the Maduro government, a characterization that critics said the evidence did not support.

The Deportations and Defiance of a Court Order

A federal judge on March 15 issued a temporary restraining order that blocked the use of the 18th-century law. But the same day, three flights carrying more than 200 Venezuelan men — 137 of whom were expelled under the Alien Enemies Act — were flown to El Salvador to be held in the nation's maximum-security prison. Judge James Boasberg had ordered the Trump administration to halt its plans to use the wartime authority to quickly deport the migrants. That did not happen, and the planes landed in El Salvador hours later. The administration's decision to proceed despite the active court order became one of the most serious episodes of executive-judicial confrontation of Trump's second term.

The Trump administration invoked the AEA — an 18th-century wartime authority used to remove noncitizens with little-to-no due process — by arguing that Tren de Aragua is a "hybrid criminal state" that is invading the United States. Trump officials accused the Venezuelan migrants on those flights of being Tren de Aragua members, though their lawyers pointed out that many of them had no criminal records. No individualized evidence was presented in court before the deportations took place, and the government did not provide the men an opportunity to contest their designations before removal.

Significance and Impact

The episode carried significance on at least three distinct levels: the domestic legal precedent it set, the human consequences for those deported, and the broader message it sent about executive power and the role of the courts. On the legal plane, the invocation of the Alien Enemies Act in a peacetime immigration context was without modern precedent. The case over the Alien Enemies Act first brought into focus critiques about the Trump administration's lack of due process in its immigration policy. By deporting individuals without a hearing and in defiance of a restraining order, the administration provoked a sustained constitutional dispute over the limits of executive authority that courts at every level were forced to address.

The human impact centered on CECOT, the Salvadoran prison where the deportees were held. The move was widely condemned by human rights groups, with serious doubts raised about the validity of the evidence used to establish Tren de Aragua membership. In interviews with media, former CECOT detainees detailed abuses they said they experienced in the prison, including beatings and sexual assaults. The Trump administration invoked an archaic 1798 statute to forcibly disappear at least 137 Venezuelan nationals and summarily deport them to El Salvador, where they were indefinitely jailed in a notorious maximum-security prison, according to Human Rights Watch.

On the geopolitical level, the arrangement with El Salvador's government under President Nayib Bukele marked an unusual bilateral agreement in which the U.S. paid a foreign government to warehouse individuals removed under emergency domestic legal authority — a model that the administration indicated it wished to replicate more broadly.

Reactions and Debate

The legal challenges came swiftly and from multiple directions. The March 15 order was upheld by a federal appeals court on March 26. Two days later, the Trump administration asked the Supreme Court to lift the lower court orders. On April 7, the Supreme Court cleared the way for the administration to resume deportations using the law, but said that individuals subject to removal are entitled to judicial review. That April ruling was a partial victory for the administration but did not settle the underlying statutory question of whether the act could lawfully be applied to a non-state gang.

In April, the Supreme Court blocked the deportations of any Venezuelans held in northern Texas under the wartime law, directing the Trump administration not to remove those held in the Bluebonnet Detention Center "until further order of this court." Justices Clarence Thomas and Samuel Alito dissented. In May, the Supreme Court barred the Trump administration from quickly resuming deportations of Venezuelans under the 18th-century wartime law.

District courts also ruled against the administration on the merits. U.S. District Judge Fernando Rodriguez Jr. held that the use of the act in this way was impermissible: "The historical record renders clear that the President's invocation of the AEA through the Proclamation exceeds the scope of the statute and is contrary to the plain, ordinary meaning of the statute's terms." The court concluded that "as a matter of law, the Executive Branch cannot rely on the AEA, based on the Proclamation, to detain the Named Petitioners and the certified class, or to remove them from the country."

A three-judge panel of the Fifth U.S. Circuit Court of Appeals — one of the most conservative federal appeals courts in the country — agreed with immigrant rights lawyers and lower court judges who argued that the Alien Enemies Act of 1798 was not intended to be used against gangs like Tren de Aragua. The administration countered throughout that federal courts had no authority to second-guess presidential determinations in matters of national security and foreign policy. The Justice Department argued that the judge had overstepped his authority by inserting himself into questions of foreign policy.

The due process dimension drew particular judicial attention. Judge Boasberg said the U.S. government "maintained constructive custody" over the migrants while they were imprisoned at CECOT, and that their right to due process was violated when the Trump administration invoked the Alien Enemies Act to deem them members of Tren de Aragua without allowing them to contest the designation. As Boasberg wrote in a later order, "Defendants plainly deprived these individuals of their right to seek habeas relief before their summary removal from the United States." He acknowledged that perhaps the President lawfully invoked the Alien Enemies Act and perhaps the plaintiffs were gang members, but concluded that "there is simply no way to know for sure, as the CECOT Plaintiffs never had any opportunity to challenge the Government's say-so."

Outlook

Shortly after Trump issued the Alien Enemies Act proclamation, his administration used it to send at least 137 Venezuelans to El Salvador. They were held for months in the brutal mega-prison known as CECOT before being released to Venezuela as part of a prisoner exchange. The CECOT migrants were moved in July from the Salvadoran prison to Venezuela as part of a broader prisoner exchange that involved the return of at least 10 Americans detained in Venezuela. That step further complicated efforts to ascertain the status of the migrants, some of whom had fled Venezuela and were in hiding.

Judge Boasberg ruled in February 2026 that the government must pay to fly back or accept at a U.S. port of entry any of the men who are in countries other than Venezuela. Those returning are likely to be detained upon arrival as they fight accusations they are members of Tren de Aragua. Those still in Venezuela can challenge their deportation from that country and will not for now be allowed to come to the U.S.

As of August 2026, the core constitutional question — whether the Alien Enemies Act can lawfully be applied to a non-state criminal organization in peacetime — remains unresolved by the Supreme Court. A federal appeals court recently sidestepped major questions on whether Trump lawfully invoked the Alien Enemies Act, finding a key challenge moot because the original CECOT detainees had already been returned to Venezuela. That procedural evasion leaves the underlying statutory and constitutional dispute open to future litigation. The episode has established a template — emergency invocation of wartime authority, rapid removal before courts can intervene, and offshore detention — that legal scholars and civil liberties advocates regard as a durable challenge to the judicial oversight of executive power over immigration.