Andrew Kent, Fordham University School of Law, has posted The Alien Enemies Act of 1798:
For the first time since World War II-and the first time ever outside a formally declared war-an American president has invoked the Alien Enemies Act to detain and deport noncitizens. In March 2025, President Donald Trump proclaimed that all members of the Venezuelan gang Tren de Aragua present in the United States are enemy aliens, asserting that their actions, supposedly coordinated with the Maduro government, constitute an "invasion" and "predatory incursion" under the statute's triggering language. Enacted during the Quasi-War with France in 1798, the Act's key terms remain unchanged. This Article is a comprehensive account of the statute's original meaning.
Every method of statutory interpretation-carefully reading the full 1798 text and examining the Alien Enemies Act's purposes and its political, diplomatic, and military contexts; examining related statutes; understanding background rules of common law and international law (especially those governing alien enemies); and finding definitions of key words in dictionaries and from contemporaneous linguistic usage-confirms that the Trump administration's reading is irreconcilable with the statute's original meaning in 1798. "Alien enemy" status required a state of war or an imminent threat thereof. The Act was intentionally written to bar the president from declaring alien enemy status in other situations. The statute's triggers were understood to be met when a foreign nation's offensive military actions indisputably created a state of actual or imminent armed attack on U.S. territory, or when Congress acted to formally authorize a state of war, consistent with Congress's view that it, not the president, had power under the Constitution to declare war and authorize more limited hostilities.
Furthermore, the historical record strongly suggests that individuals detained under the Act could seek judicial review of whether they were, in fact and law, alien enemies-contrary to claims of the Trump administration. Finally, this Article analyzes other provisions of the statute not implicated in 2025 and situates the Act within its broader context-fierce partisan battles between Federalists and Republicans over immigration, loyalty, national character, federal power, and foreign policy.
--Dan Ernst
