Alien Enemies Act: What The Law Says
And What It Does Not
Laws are curious things. They are full of words, and they are full of meaning.
Presumably, the words of the law contain the meaning of the law—unless you work for corporate media or are a judge in the federal judiciary who does not like Donald Trump, such as D.C. Circuit Court of Appeals Judge Patricia Millett.
"Nazis got better treatment under the Alien Enemies Act than what has happened here," D.C. Circuit Court of Appeals Judge Patricia Millett said during a hearing at the court on Monday. "And they had hearing boards before they were removed."
Yet even the most Trump-deranged jurist (of which there are legion) cannot escape that words have meaning—and words within the law have the meaning of the law.
Thus we have Chief Justice John Marshall’s eloquent summation of judicial responsibility from Marbury v Madison1:
"It is emphatically the province and duty of the Judicial Department to say what the law is."
Alas, discharging that responsibility is a stumbling block to judges whose emotions are triggered by media images of poor defenseless Tren de Aragua gang members being yanked out of their havens of drug and human trafficking and unceremoniously shipped off to El Salvador’s prisons.
Alien Enemies Act: What The Law Says
When assessing any statute, I choose to follow the rationale of the late Justice Antonin Scalia, who argued passionately for reading the Constitution as it was written:
The Constitution says what it says and it doesn’t say anything more,
Similarly, acts of Congress say what they say, and do not say anything more.
What does the Alien Enemies Act2 say?
First and foremost, it says that the President of the United States is empowered to declare certain groups of non-citizens “alien enemies” and order their removal from the territories of the United States.
That whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President of the United States shall make public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies.
We must note in particular the passage I have emphasized above. Contrary to what some have argued, the Act does not require a formal declaration of war or even a formally recognized state of war to be invoked. All that is required is that there be a “threat” of an “invasion or predatory incursion”.
Straight away, then, we have the beginnings of misrepresentation within corporate media characterizing the Alien Enemies Act as a “wartime law”.
That bit of misrepresentation has particular relevance, given the reference made by Judge Millett to “Nazis”—meaning, of course, German nationals. German nationals were declared “alien enemies” by President Roosevelt on December 8, 19413, in the aftermath of the Japanese attack on Pearl Harbor on December 7.
However, a state of war did not exist between Germany and the United States until three days later, when German Foreign Minister Joachim von Ribbentrop communicated to Leland Morris, the Charge d’Affaires at the US Embassy in Berlin that Germany had declared war on the United States4.
At the time President Roosevelt issued his Proclamation declaring German nationals to be alien enemies, there was no more a declared state of war between the United States and Germany than there is now between the United States and Venezuela.
Indeed, we should also note that President Trump in his proclamation invoking the Alien Enemies Act5 was far more expostulatory than President Roosevelt.
Tren de Aragua (TdA) is 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. TdA operates in conjunction with Cártel de los Soles, the Nicolas Maduro regime-sponsored, narco-terrorism enterprise based in Venezuela, and commits brutal crimes, including murders, kidnappings, extortions, and human, drug, and weapons trafficking. TdA has engaged in and continues to engage in mass illegal migration to the United States to further its objectives of harming United States citizens, undermining public safety, and supporting the Maduro regime’s goal of destabilizing democratic nations in the Americas, including the United States.
Roosevelt merely said the conditions of the Alien Enemies Act were satisfied.
Now, Therefore, I, Franklin D. Roosevelt, as President of the United States and as Commander in Chief of the Army and Navy of the United States, do hereby make public proclamation to all whom it may concern that an invasion or predatory incursion is threatened upon the territory of the United States by Germany.
Moreover, the Alien Enemies Act makes no guarantee of particular due process. Rather, it specifies that the President, in making such a proclamation, outlines what is to become of said alien enemies.
And the President of the United States shall be, and he is hereby authorized, in any event, as aforesaid, by his proclamation thereof, or other public act, to direct the conduct to be observed, on the part of the United States, towards the aliens who shall become liable, as aforesaid; 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, shall refuse or neglect to depart therefrom; and to establish any other regulations which shall be found necessary in the premises and for the public safety: Provided, that aliens resident within the United States, who shall become liable as enemies, in the manner aforesaid, and who shall not be chargeable with actual hostility, or other crime against the public safety, shall be allowed, for the recovery, disposal, and removal of their goods and effects, and for their departure, the full time which is, or shall be stipulated by any treaty, where any shall have been between the United States, and the hostile nation or government, of which they shall be natives, citizens, denizens or subjects: and where no such treaty shall have existed, the President of the United States 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.
When we examine President Roosevelt’s proclamation, we see that he did establish how German nationals were to be treated.
And, acting under and by virtue of the authority vested in me by the Constitution of the United States and the said sections of the United States Code, I do hereby further proclaim and direct that the conduct to be observed on the part of the United States toward all natives, citizens, denizens or subjects of Germany being of the age of fourteen years and upwards who shall be within the United States or within any territories in any way subject , to the jurisdiction of the United States and not actually naturalized, who for the purpose of this Proclamation and under such sections of the United States Code are termed alien enemies, shall be as follows:
All alien enemies are enjoined to preserve the peace towards the United States and to refrain from crime against the public safety, and from violating the laws of the United States and of the States and Territories thereof; and to refrain from actual hostility or giving information, aid or comfort to the enemies of the United States or interfering by word or deed with the defense of the United States or the political processes and public opinions thereof: and to comply strictly with the regulations which are hereby or which may be from time to time promulgated by the President.
All alien enemies shall be liable to restraint, or to give security, or to remove and depart from the United States in the manner prescribed by sections 23 and 24 of title 50 of the United States Code, and as prescribed in the regulations duly promulgated by the President.
Thus, Judge Millett is in error in her apprehension of the treatment of German nationals on the eve of war between the US and Germany. They were not given “due process” under the Alien Enemies Act, but were accorded that measure of grace by the President.
President Trump did not extend similar grace to Venezuelan nationals suspected of being members of Tren de Aragua.
I further find and declare that all such members of TdA are, by virtue of their membership in that organization, chargeable with actual hostility against the United States and are therefore ineligible for the benefits of 50 U.S.C. 22. I further find and declare that all such members of TdA are a danger to the public peace or safety of the United States.
Note that both proclamations are following the text of the Alien Enemies Act. Both proclamations are in accordance with that law.
The Alien Enemies Act: What The Courts Say
Because the Alien Enemies Act has been used only very rarely, it is unsurprising that the courts have had very little to say regarding the Act or its invocation. Only one Supreme Court case, Ludecke v. Watkins6 specifically addresses the parameters of the Alien Enemies Act—and it does so chiefly by removing the courts from the equation.
As Congress explicitly recognized in the recent Administrative Procedure Act, some statutes "preclude judicial review." Act of June 11, 1946,§ 10, 60 Stat. 237, 243. Barring questions of interpretation and constitutionality, the Alien Enemy Act of 1798 is such a statute. Its terms, purpose, and construction leave no doubt. The language employed by the Fifth Congress could hardly be made clearer, or be rendered doubtful, by the incomplete and not always dependable accounts we have of debates in the early years of Congress.
The Court, however, did acknowledge that the formalities of actual war were not essential to the invocation of the Act.
War does not cease with a cease-fire order, and power to be exercised by the President such as that conferred by the Act of 1798 is a process which begins when war is declared but is not exhausted when the shooting stops.
Moreover, as I have noted previously, the Court has for over a century and a half recognized, ever since Mississippi v Johnson7, that the courts are not empowered to bind the executive branch of the government from discharging the executive function.
Very different is the duty of the President in the exercise of the power to see that the laws are faithfully executed, and, among these laws, the acts named in the bill. By the first of these acts, he is required to assign generals to command in the several military districts, and to detail sufficient military force to enable such officers to discharge their duties under the law. By the supplementary act, other duties are imposed on the several commanding generals, and these duties must necessarily be performed under the supervision of the President as commander-in-chief. The duty thus imposed on the President is in no just sense ministerial. It is purely executive and political.
An attempt on the part of the judicial department of the government to enforce the performance of such duties by the President might be justly characterized, in the language of Chief Justice Marshal, as "an absurd and excessive extravagance."
It is true that, in the instance before us, the interposition of the court is not sought to enforce action by the Executive under constitutional legislation, but to restrain such action under legislation alleged to be unconstitutional. But we are unable to perceive that this circumstance takes the case out of the general principles which forbid judicial interference with the exercise of Executive discretion.
Thus not only is Judge Millett’s derogation of President Trump’s invocation of the Alien Enemies Act historically erroneous, her intimation that President Trump has somehow strayed beyond the boundaries of the Act is itself legally suspect. The language of the statute, the Court’s position on the Act, and the Court’s historic view of executive discretion all argue against Judge Millett asserting such an opinion as a matter of law.
We should, however, make one additional observation about the Court’s views on the Alien Enemies Act: In the per curiam ruling United States ex rel. Jaegeler v. Carusi8, the Court noted that the Congress, by virtue of legislation, had officially declared the conflicts between Germany and the United States to be resolved, and so the conditions for the invocation of the Alien Enemies Act were by that action officially ended. While the President has the power to invoke the Act, and the power to determine how it is to be employed, Congress always retains the power to override the President and reverse such a proclamation. The Alien Enemies Act might be in large measure beyond judicial review, but the nature of the executive function within government is such that it is never beyond legislative review.
The Alien Enemies Act: What People Say
We must be diligent and precise when discussing the Alien Enemies Act, and any Presidential action taken under its auspices, because there is a broad tendency among people to gloss over the particulars of the law, and instead argue their emotive assessment of a situation.
This was certainly true of a discussion I had within Substack Notes regarding President Trump’s deportation orders, and the seeming disregard for rights of due process (I am refraining from identifying the individual out of respect for his privacy).
The reason im telling you what the issue is, is so that we can discuss the issues that democrats care about. Which is legal due process. Not protecting gang members
Certainly questions about due process are meaningful and substantive questions—but they necessarily proceed from the letter of the law. Even Justice William Douglas’ famous articulation of Constitutional “penumbras” in Griswold v Connecticut9 necessarily refers back to the particular language of the Constitution and its Amendments.
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.
Thus when apprehending the use of the Alien Enemies Act and how it intersects with due process, we must be prepared to explore what due process is established by the Act for persons declared to be Alien Enemies.
Indeed, in the online discussion I had over this issue, the person’s primary concern was that the invocation of the Act was somehow “unethical.”
But honestly I’m just not interested in a legal context. I’m talking about innocent people being thrown in a prison. Whether or not it’s legal is frankly irrelevant. The things Hitler did were technically legal. Slavery was legal. Legality and ethics, are exclusive. I’m discussing the ethics.
While discussions of ethics are meaningful, the presumption that ethics and law are wholly separate from each other is not a defensible proposition, and nowhere is this more clear than when discussing immigration and deportation.
Which is why I have asserted previously that immigration is strictly a question of law, and not of “justice”.
We cannot evade the particulars of the law merely because we find it more comfortable to couch objections to a particular policy or action in gauzy terms of ethics.
While every President can be said to have a duty to conduct himself ethically, we must remember that such responsibility itself arises from the text of the Constitution, in particular by the oath or affirmation every President takes upon assuming office, which is specified in Article 2 Section 1 of the Constitution:
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
Article 2 Section 3 further specifies that the President “shall take Care that the Laws be faithfully executed”. That is the “ethical” duty of the President of the United States.
The Constitution also obligates the national government, in Article 4 Section 4, to protect the several states from invasion and foreign violence.
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
Regardless of how we may personally view specific exercises of Presidential power, the “ethical” duty of the President of the United States is in part to protect the people and the territories of the United States from foreign threats. The President has the clear ethical duty to make good use of all the laws and resources at his disposal to ensure that the states are protected against invasions. For better or worse, Congress in 1798 saw fit to give the President wide ranging powers to resolve concerns regarding non-citizens who could be considered alien enemies, including powers of apprehension and deportation.
Does that make President Trump’s invocation of the Alien Enemies Act automatically good policy? No. Some might even argue that its use is a mistake, that there are better and less controversial methods for dealing with the safety threats of transnational criminal gangs such as Tren de Aragua.
Perhaps there are better ways.
However, no matter what ways are explored and ultimately used, one legal Constitutional truth is always going to be present: Article I Section 8 of the Constitution authorizes and obligates the Congress to draft a uniform law on immigration and naturalization. Congress decides how visas are to be handled, how entry into the United States is to take place, and the terms and conditions of mandatory removal from the United States. There is no inherent right of entry into the United States and the non-citizen does not have an inherent right to remain in the United States. Lawful entry and lawful status are, for the non-citizen, entirely at the sufferance of the United States, in the form of the government of the United States.
That Constitutional reality is the necessary framing for all expectations of “due process” for the non-citizen regarding matters of deportation. That expectation is best phrased thus: Congress decides, not the courts.
Congress decrees whom may enter the United States, and whom may remain in the United States. Congress decrees upon what parole a non-citizen may remain in the United States, and how a violation of that parole by the non-citizen is to be adjudicated.
The Alien Enemies Act: Constitutional?
Is the Alien Enemies Act Constitutional? The Courts have not seen fit to declare the law unconstitutional, which makes any argument against Constitutionality very difficult to assemble. Given the assessment of the Act in Ludecke v. Watkins, absent a clear Constitutional violation we must presume that the Act is Constitutional, which makes the invocation of the Act ethical and even essential, so long as the articulated predicates of that invocation are met.
Should the Alien Enemies Act be limited to formal declarations of war? That is a policy position. There is perhaps a certain logic to it, but given President Trump’s depiction of the collusion between the Maduro regime in Venezuela and Tren de Aragua, there is also a certain logic to the idea that Tren de Aragua’s presence in the United States constitutes a threat against the safety of the United States by the government of Venezuela.
So long as the Alien Enemies Act is held to have passed Constitutional muster, so long as the President can articulate a set of conditions which meet the requirements of the Alien Enemies Act, and so long as the Congress does not elect to override the President in this regard, the Act is one of the tools at the President’s disposal for addressing the security concerns of the people of the United States.
The conflict between the courts and the President over deportation issues such as the Alien Enemies Act is likely to take a while longer to unfold. At some point it we must presume that the legal cases will land before the Supreme Court for final adjudication.
I will not conclude here that use of the Alien Enemies Act by President Trump is necessarily good policy. So far, it is reasonable to conclude that its use has for the President been good politics.
However, one reason why we can conclude that the use of the Act is good politics is because the Act itself is presumptively Constitutional, and that the powers it delegates to the President are therefore lawful. Within his ethical responsibility as Commander-in-Chief of the military, as the nation’s chief executive in whom all executive authority is vested, who has the sworn duty to take care that the laws be faithfully executed, the Alien Enemies Act is one of the legal tools at President Trump’s disposal.
For better or worse, President Trump is doing what the Alien Enemies Act and the Constitution say he is authorized and obligated to do as the nation’s chief executive.
Whether we like how he is doing that or not, it is foolish to argue a President is doing evil simply by virtue of that President doing his job.
An Act Respecting Alien Enemies. 6 July 1798, https://www.archives.gov/milestone-documents/alien-and-sedition-acts#enemies.
Franklin D. Roosevelt, Proclamation 2526—Alien Enemies, German Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/357751
The German Minister for Foreign Affairs (Ribbentrop) to the American Chargé in Germany (Morris), Foreign Relations of the United States (FRUS), 1941, Volume I: General, the Soviet Union (URL: https://history.state.gov/historicaldocuments/frus1941v01/d584).
Donald J. Trump. Invocation of the Alien Enemies Act Regarding the Invasion of The United States by Tren De Aragua. 14 Mar. 2025, https://www.whitehouse.gov/presidential-actions/2025/03/invocation-of-the-alien-enemies-act-regarding-the-invasion-of-the-united-states-by-tren-de-aragua/.
Ludecke v. Watkins, 335 U.S. 160 (1948)
Mississippi v. Johnson, 71 U.S. 475 (1866)
United States ex rel. Jaegeler v. Carusi, 342 U.S. 347 (1952)
Griswold v. Connecticut, 381 U.S. 479 (1965)
Thanx Amigo
Thank you for this tour de force Peter.
Judge Miller is confused. The Nazi cases she has in mind were not concerning illegal (or any) aliens, they were about illegal citizens. These were cases of Nazis who had entered the U.S. with the appearance of legality and then obtained citizenship, but fraudulently denied their past activities as Nazis. The due process given then was not so much about deportation but about stripping them of their U.S. citizenship.