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An “Authoritarian Turn” – FJP Condemns Trump Administration’s Use of the Alien Enemies Act as a Dangerous Moment for US Democracy
March 17, 2025 (Washington, D.C.) — On March 15, President Trump invoked the Alien Enemies Act of 1798 to deport 261 Venezuelan nationals to El Salvador for arbitrary and indefinite detention in El Salvador’s notorious prison system. The Administration’s invocation of the Alien Enemies Act when the United States is neither at war nor subject to a military invasion is historically unprecedented. A federal district court judge for the District of Columbia issued an immediate temporary restraining order blocking President Trump’s use of the Alien Enemies Act and ordering the Trump Administration to return the detainees to the United States. The Trump Administration refused to comply with this judicial order, claiming that the Court’s jurisdiction was limited given that the detainees were on a flight over international waters.
President Trump’s actions come shortly after the President ordered DHS to detain and attempt to deport Mahmoud Khalil, a U.S. legal permanent resident. Neither DHS nor any other part of the Trump administration has accused Mr. Khalil of committing a crime, but have instead made it clear that Mr. Khalil has been detained and stripped of his permanent resident status for exercising his first amendment rights to protest Israel’s war in the Gaza Strip. Administration officials justified Khalil’s detainment by claiming his presence in the United States posed “potentially serious adverse foreign policy consequences” for the nation. DHS has been ordered by a district court judge in the Southern District of New York to halt Khalil’s deportation proceedings. The Trump Administration has failed to comply with this Court order and continues to hold Mr. Khalil unlawfully in an ICE detention facility.
Fair and Just Prosecution Acting Co-Executive Director Amy Fettig issued the following statement in response to the Trump Administration’s invocation of the Alien Enemies Act to enforce its mass deportation agenda:
“After unlawfully threatening to cut funding to sanctuary cities and states, illegally detaining and attempting to deport a legal permanent resident over his political speech, and weaponizing the Justice Department to prosecute local law enforcement officials who fail to comply with this Administration’s blatantly unlawful executive orders, President Trump is now invoking war time powers during a time of peace to justify rounding up potentially millions of people. This blatantly unconstitutional and unlawful power grab reveals the Trump Administration’s mass deportation agenda for what it is – an authoritarian turn in our nation’s history and a time when the rule of law is under direct threat.
“We are seeing an Administration that has no respect for the Courts, no respect for Congress, and no respect for the basic separation of powers between states and the federal government outlined in the Constitution. Furthermore, the weaponization of national security to wield law enforcement against this administration’s political enemies is the sort of behavior that authoritarian regimes in other nations routinely employ to suppress their own citizens. This is a five-alarm fire for our democracy. The American people must make their voices heard because there is no denying that we are currently headed in a very dangerous direction.”
BACKGROUND
The Alien Enemies Act (1798) is a wartime power that has only been evoked three times in U.S. nation’s history, during the War of 1812, World War I, and World War II. The law allows the executive branch to deport “natives and citizens” of an enemy nation during times of war, or during an invasion or “predatory incursion” by a hostile power against U.S. territory.
Many legal scholars question the constitutionality of the Alien Enemies Act, which has been used as a legal justification for some very shameful chapters in United States’ history, including the internment of Japanese Americans during World War II. For over two centuries, the Alien Enemies Act has been recognized by the Supreme Court and past presidents as a wartime authority, enacted and implemented under Congress’s war powers. When the law was passed by the Fifth Congress and later invoked during World War I, it was understood to be limited to noncitizens with ties to an enemy nation who could be treated as prisoners of war, consistent with the “rules of war under the law of nations.”
The Trump administration is relying on an entirely novel interpretation of the law by classifying unlawful migration as an “invasion,” the Trump Administration is classifying nearly 12 million residents – most of them people of color – as foreign enemies. This interpretation directly contradicts centuries of legislative, presidential, and judicial precedent, which confirm that the Alien Enemies Act applies strictly in times of war. The Brennan Center for Justice at the NYU School of Law has called the Administration’s peacetime invocation of the law as a “staggering abuse.”