Understanding the Alien Enemies Act of 1798: A Law That Trump Might Invoke

Former President Donald Trump is contemplating the use of a historic law to facilitate the expulsion of foreign gangs and cartel members in an effort to bolster U.S. border security.

During his campaign, Trump promised to “invoke the Alien Enemies Act of 1798 to target and dismantle every migrant criminal network operating within American borders.”

According to Joshua Treviño, chief transformation officer for the Texas Public Policy Foundation (TPPF), a conservative policy analysis group, two criteria must be fulfilled to activate the Act.

Firstly, there must be a war, invasion, or predatory encroachment on U.S. territory. Secondly, the hostile action must be perpetrated by a foreign government.

In over two centuries, the Alien Enemies Act has been invoked only three times. Its most recent application was by President Franklin D. Roosevelt during World War II, which led to the establishment of Japanese internment camps in response to the 1941 Pearl Harbor attack. Such internment practices have faced condemnation from civil rights advocates.

The Act was originally designed to prevent French nationals in the U.S. from inciting war.

From this context, Treviño posits that terrorist groups functioning as foreign actors or collaborating with foreign governments may satisfy the criteria necessary to invoke this law.

“When we assess cartel activities, we are indeed facing an invasion,” he noted. If an organization can inflict harm on Americans and maintains connections with foreign state support, it makes a compelling argument that an invasion is occurring.

According to Treviño, cartels and foreign gangs may be regarded as quasi-government entities undermining national sovereignty.

“These organizations often receive state backing. In numerous instances, they operate as agents of the state,” Treviño explained. “The connection between the cartels and the Mexican government is quite extensive.”

With revenues in the billions from drug trafficking and human smuggling, the cartels maintain their own armed groups and exert control over areas in Mexico.

The Alien Enemies Act stipulates that upon the president’s public proclamation of its invocation, “all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and older, who are within the United States and not yet naturalized, shall be subject to apprehension, detention, and removal as alien enemies.”

With these initiatives, Trump would acquire significant authority to tackle issues of invasion or wartime conditions along the border.

His order mandates federal agencies to provide recommendations regarding the designation of cartels within 14 days.

Additionally, within a 14-day timeframe, the attorney general and the secretary of homeland security are tasked with taking necessary actions, in coordination with the secretary of state, to prepare for implementing the decisions made by Trump regarding the invocation of the Alien Enemies Act and expediting the removal of designated individuals under the order.

The Alien Enemies Act permits the government to detain and deport the majority of citizens from a nation deemed a threat to U.S. security without a hearing, simply based on their birthplace or nationality.

The executive order outlines that violence associated with drug cartels and transnational gangs—such as the Venezuelan group Tren de Aragua—poses a risk to U.S. security.

It conveys that in some regions of Mexico, cartels “operate as quasi-governmental entities, exerting nearly complete control over societal functions.”

The American Civil Liberties Union (ACLU) has criticized Trump’s plan to utilize the Alien Enemies Act, branding it as a “colonial-era law” that targets immigrants unfairly.

Abbott asserted that the federal government was neglecting its responsibility to shield states from an “invasion” as per Article IV of the Constitution. Furthermore, Article I emphasizes that states possess “a sovereign interest” in defending their own borders.

Leveraging his constitutional authority, Abbott mobilized the Texas National Guard and law enforcement to mitigate the influx of millions of undocumented immigrants streaming across from Mexico. Texas initiated the installation of razor wire, buoy barriers in the Rio Grande, and apprehended illegal immigrants for trespassing on private grounds.

Prior to this, the park had been inundated with thousands of undocumented individuals awaiting processing by Border Patrol.