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Alien enemies act deportations face legal reckoning

Alien enemies act deportations face legal reckoning

Rule Changes

A wartime law last used for Japanese internment is tested against due process in federal courts

February 12th, 2026: Judge Orders U.S. to Facilitate Deportees' Return

Overview

The Alien Enemies Act has been invoked only four times in American history—during the War of 1812, World War I, World War II, and now. In March 2025, President Trump became the first president to use the 1798 wartime statute outside of a declared war, targeting alleged members of Venezuela's Tren de Aragua gang and sending 137 men to El Salvador's maximum-security CECOT prison within 24 hours. On February 12, 2026, a federal judge ordered the government to facilitate their return to the United States, ruling they were denied the right to challenge their removal.

The case tests whether the executive branch can bypass immigration courts entirely by declaring a criminal gang an invading foreign enemy. Three federal courts have found the Act's use unlawful; the administration has appealed each ruling. For the men deported to CECOT—where inmates have no contact with the outside world—the question of whether they were actually gang members may finally get a hearing.

Play on this story Voices Debate Who Said What? Predict

Key Indicators

137
Deportees Under AEA
Venezuelan men removed to CECOT specifically under the Alien Enemies Act
75%
No Criminal Record
Proportion of deportees with no documented criminal history in the U.S. or abroad
4th
Invocation in History
Only the fourth use of the Alien Enemies Act since 1798
252
Total CECOT Deportees
All Venezuelan men sent to El Salvador in March 2025, later transferred to Venezuela in a prisoner swap

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People Involved

James E. Boasberg
James E. Boasberg
Presiding over class action challenging AEA deportations
 Donald Trump
Donald Trump
Appealing court rulings blocking AEA deportations
 Nayib Bukele
Nayib Bukele
Hosting foreign nationals at CECOT under agreement with U.S.

Organizations Involved

American Civil Liberties Union (ACLU)
American Civil Liberties Union (ACLU)
Civil Liberties Organization
Lead counsel challenging AEA deportations

The ACLU filed suit within hours of the March 2025 deportations, arguing the Alien Enemies Act was invoked illegally.
Democracy Forward
Democracy Forward
Legal Advocacy Organization
Co-counsel in J.G.G. v. Trump

Democracy Forward co-leads the class action seeking return and hearings for deported Venezuelans.
Tren de Aragua
Tren de Aragua
Transnational Criminal Organization
Designated Foreign Terrorist Organization and Transnational Criminal Organization

Venezuelan prison gang that expanded internationally amid the country's economic collapse.
Terrorism Confinement Center (CECOT)
Terrorism Confinement Center (CECOT)
Maximum-Security Prison
Holding Venezuelan deportees; facility in El Salvador

El Salvador's 40,000-capacity mega-prison built to permanently incarcerate suspected gang members.

Timeline

  1. Judge Orders U.S. to Facilitate Deportees' Return

    Legal

    Boasberg orders the government to pay for flights and accept at ports of entry any of the 137 class members now in third countries who wish to challenge their removals. He criticizes the government for telling the court to "pound sand."

  2. Boasberg Rules Deportations Violated Due Process

    Legal

    Judge Boasberg finds the 137 men deported under the AEA were denied due process, certifies them as a class, and orders the government to propose remedies.

  3. Fifth Circuit Grants En Banc Rehearing

    Legal

    The full 17-judge Fifth Circuit agrees to rehear the case, vacating the panel's preliminary injunction.

  4. Fifth Circuit Rules AEA Use Unlawful

    Legal

    A three-judge panel rules 2-1 that the Alien Enemies Act was improperly invoked, finding "no invasion or predatory incursion" by Tren de Aragua. The government seeks en banc review.

  5. Prisoner Swap Returns Deportees to Venezuela

    Diplomatic

    All 252 Venezuelan men held at CECOT are flown to Venezuela in exchange for 10 American citizens and legal permanent residents. The deportees later describe physical and psychological abuse at CECOT.

  6. Supreme Court Blocks Further AEA Deportations

    Legal

    In a 7-2 ruling, the Supreme Court extends its injunction, finding the government's 24-hour notice period "surely does not pass muster." Trump criticizes the decision on Truth Social.

  7. Pennsylvania Judge Upholds AEA Use

    Legal

    A federal judge in Pennsylvania becomes the first to rule in favor of the administration's interpretation of the Alien Enemies Act.

  8. Supreme Court Allows Deportations with Notice Requirement

    Legal

    In an unsigned opinion, the Supreme Court's conservative majority permits AEA deportations to continue, but requires that targets receive notice and an opportunity to contest removal.

  9. First Deportation Flights Depart

    Deportation

    Three planes carrying over 250 Venezuelan men depart for El Salvador. The passengers receive less than 24 hours notice and no information about how to contest their removal.

  10. Judge Boasberg Issues Temporary Restraining Order

    Legal

    Hours after ACLU and Democracy Forward file suit, Judge Boasberg orders a halt to AEA deportations. The planes have already landed in El Salvador.

  11. Trump Invokes Alien Enemies Act

    Executive Action

    President Trump signs Proclamation 10903 declaring Tren de Aragua gang members "alien enemies" engaged in an invasion. The 1798 law had not been used since World War II.

Scenarios

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1

Supreme Court Upholds AEA Use, Executive Power Expands

The Supreme Court could rule that the President has broad authority to determine what constitutes an "invasion" under the Alien Enemies Act, extending to criminal organizations with ties to hostile governments. This would allow future administrations to bypass immigration courts for designated groups. The Trump administration's argument that Tren de Aragua operates "in conjunction with" the Maduro regime provides the nexus to Venezuela's government that the law may require.

Discussed by: Legal scholars at the Federalist Society, dissenting Fifth Circuit Judge Oldham
Consensus —
2

Courts Limit AEA to Declared Wars, Deportees Get Hearings

Courts could establish that the Alien Enemies Act applies only during declared wars or armed conflicts with foreign nations—as it has been used historically. The 137 class members would receive hearings to contest their alleged gang membership. Given that 75% had no criminal record and the administration acknowledged at least one "administrative error," some would likely win the right to remain in the United States.

Discussed by: Brennan Center for Justice, ACLU, majority of federal judges who have ruled on the issue
Consensus —
3

Political Resolution: Deportees Remain in Venezuela, Case Becomes Moot

The administration could delay compliance with court orders through appeals while the deportees remain in Venezuela. If the men cannot practically return to U.S. ports of entry due to financial constraints or Venezuelan government interference, the case could become moot over time. Judge Boasberg's order excluded those in Venezuela from the return remedy due to "foreign affairs" concerns, limiting the practical reach of his ruling.

Discussed by: Immigration policy analysts, news reports on administration strategy
Consensus —
4

Congress Amends Alien Enemies Act, Clarifying or Expanding Its Scope

Congress could intervene to either narrow the Act to explicitly require declared war or expand it to cover designated criminal and terrorist organizations. The former would settle the legal question against executive overreach; the latter would codify the Trump administration's approach. Given divided government, legislative action appears unlikely in the near term.

Discussed by: Congressional Research Service, immigration law experts
Consensus —

Historical Context

Japanese American Internment Under the Alien Enemies Act (1942)

February 1942 - March 1946

What Happened

Following Pearl Harbor, President Franklin Roosevelt invoked the Alien Enemies Act and signed Executive Order 9066, authorizing the internment of approximately 120,000 people of Japanese ancestry—two-thirds of them American citizens. The government arrested nearly 9,000 Japanese immigrants under the Act specifically, along with 11,500 German and 3,000 Italian detainees.

Outcome

Short Term

The Supreme Court upheld the internment in Korematsu v. United States (1944), citing wartime necessity and deference to military judgment.

Long Term

Congress formally apologized in 1988 and paid $20,000 to each surviving internee. The Civil Liberties Act acknowledged the internment resulted from "race prejudice, war hysteria and a failure of political leadership." The Korematsu decision was effectively overruled in Trump v. Hawaii (2018).

Why It's Relevant Today

The current case marks the first attempt to use the Alien Enemies Act since World War II. Critics argue that targeting a criminal gang—rather than nationals of a country the U.S. is at war with—represents a more dramatic expansion of executive power than even internment.

Hamdi v. Rumsfeld: Due Process for Enemy Combatants (2004)

June 2004

What Happened

Yaser Hamdi, a U.S. citizen captured in Afghanistan, was held as an enemy combatant without charges or access to counsel. The Bush administration argued that the President's war powers allowed indefinite detention without judicial review.

Outcome

Short Term

The Supreme Court ruled 8-1 that citizen-detainees must receive "notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker."

Long Term

Hamdi was released without charge and deported to Saudi Arabia. The decision established that even wartime detention requires basic due process—a principle the ACLU now invokes for the Venezuelan deportees.

Why It's Relevant Today

Judge Boasberg's ruling echoes Hamdi: the deported men must have the chance to contest whether they are actually gang members. The administration's position—that the President's determination is unreviewable—mirrors arguments the government lost in Hamdi.

Palmer Raids: Mass Deportations Without Due Process (1919-1920)

November 1919 - January 1920

What Happened

Attorney General A. Mitchell Palmer orchestrated raids targeting suspected communists and anarchists, arresting over 10,000 people—mostly immigrants—without warrants. Approximately 3,500 were held for deportation; 556 were ultimately deported. The raids were conducted without the Alien Enemies Act, using standard immigration law.

Outcome

Short Term

Acting Secretary of Labor Louis Post reviewed cases individually and canceled most deportation orders, finding insufficient evidence.

Long Term

The raids discredited Palmer politically and strengthened support for civil liberties, contributing to the founding of the ACLU in 1920.

Why It's Relevant Today

The Palmer Raids demonstrated what happens when the executive branch bypasses due process in the name of national security. The finding that 75% of the Venezuelan deportees had no criminal record echoes Louis Post's discovery that most Palmer raid detainees lacked evidence of wrongdoing.

Sources

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NPR CBS News The Hill CNN Brennan Center for Justice The White House Britannica Wikipedia Democracy Forward NPR NPR NPR