Tuesday, April 22, 2025

Withholding Orders and How They Apply to The Kilmar Abrego Garcia Case

 

Photo of Kilmar Abrego Garcia sourced from Facebook (Greene, 2025)

Introduction

The authority of the Executive Branch to override a withholding order issued by an immigration judge without a formal hearing is a contentious issue rooted in the constitutional and statutory frameworks governing immigration courts. Unlike Article III federal judges, immigration judges operate within the Department of Justice’s Executive Office for Immigration Review (EOIR), placing them under Article II (Title II) authority rather than the independent judiciary of Article III (Title III). This structural distinction raises questions about the extent of executive oversight, particularly in cases like that of Kilmar Abrego Garcia, who was deported to El Salvador in 2025 after his withholding order was overruled. This article critically analyzes opposing claims about the Executive’s authority to override withholding orders, focusing on the legal implications, and incorporates insights multiple sources while adhering to pre-2025 primary sources for core legal analysis to minimize litigation bias.


Critical Analysis


Constitutional and Legal Framework

Immigration judges are administrative officials within the EOIR, under the Department of Justice, and subject to the Attorney General’s oversight. Article II of the U.S. Constitution vests executive power in the President, who delegates immigration enforcement to the Attorney General (U.S. Const. art. II, § 1, cl. 1; Senate.gov, n.d.). The Code of Federal Regulations allows the Attorney General to review and vacate decisions of the Board of Immigration Appeals (BIA), which hears appeals from immigration judges, extending this oversight to their rulings (8 C.F.R. § 1003.1(d)(1)(i); Executive Office for Immigration Review, 2023).

The Alien Enemies Act of 1798 (50 U.S.C. § 21) grants the President authority to detain or deport aliens from hostile nations during wartime or “invasion or predatory incursion” without hearings. Historically used in wartime, its application to actors like MS-13, designated as a Foreign Terrorist Organization (FTO), is debated (Ebright, 2023; Political Contrast, 2025a). Supreme Court rulings, such as United States v. Texas (2023) and Trump v. United States (2024), affirm the Executive’s discretion in immigration enforcement and the unreviewability of certain presidential actions within constitutional authority (United States v. Texas, 599 U.S. 670, 679; Trump v. United States, 603 U.S. 593, 609).

Case Background

In 2019, Immigration Judge David M. Jones in Baltimore, Maryland, issued a withholding order for Kilmar Abrego Garcia, preventing his deportation to El Salvador due to persecution risks. Garcia was designated an MS-13 member during prior proceedings, a finding upheld on appeal, alongside an existing deportation order. In 2025, President Trump designated MS-13 as an FTO and invoked the Alien Enemies Act to deport members, including Garcia. The Attorney General, under Title II authority, overruled Garcia’s withholding order, arguing that he was found to be a member of MS-13 and prior due process from multiple hearings and appeals was sufficient, leading to Garcia’s deportation to El Salvador (Gouveia, 2025; Political Contrast, 2025b).

Opposing Viewpoints and Claims

The debate centers on three key claims:

  1. Claim 1: The Attorney General, under the President’s Title II authority, can overrule an immigration judge’s withholding order.

    • Argument: Immigration judges operate within the EOIR, subject to BIA review, which the Attorney General can override (8 C.F.R. § 1003.1(d)(1)(i)). Article II grants the President authority over executive agencies, as affirmed in United States v. Texas (2023), which noted the Executive’s discretion in immigration enforcement (United States v. Texas, 599 U.S. 670, 679). Robert Gouveia Esq. supports this, stating, “immigration judges operate under the executive branch… and this judge got overruled by the attorney general which is lawful and allowed” (Gouveia, 2025, 05:12). Analysis reinforces this, noting that “immigration judges lack the independence of Article III courts, making them subject to executive control” (Political Contrast, 2025c). This hierarchical structure allows the Attorney General to vacate withholding orders, particularly for national security.
    • Logical Fallacies: None identified; the argument aligns with statutory and constitutional frameworks.
    • Confirmation: Confirmed. Regulations, case law, and secondary analysis support the Attorney General’s authority.

  2. Claim 2: Using the Alien Enemies Act to override withholding orders without a hearing violates due process.

    • Argument: Withholding orders, granted under the Convention Against Torture or INA § 241(b)(3), protect against deportation to countries posing life or freedom threats (8 U.S.C. § 1231(b)(3)). The Fifth Amendment’s Due Process Clause applies to aliens, requiring notice and a hearing (Zadvydas v. Davis, 533 U.S. 678, 693, 2001). The Alien Enemies Act’s wartime design allows deportations without hearings, but its peacetime use for actors like MS-13 is legally contentious, as it may bypass individualized review (Ebright, 2023). Analysis highlights that “the Act’s application to MS-13 stretches its historical scope, raising constitutional concerns” (Political Contrast, 2025a). Garcia’s prior hearings did not address the FTO designation, suggesting the possibility of a need for further process.
    • Logical Fallacies: Proponents may commit a slippery slope fallacy, assuming wartime powers extend to peacetime gang threats; however, the Act does allow for enactment under "predatory incursion" (Political Contrast, 2025a) which the Trump administration has claimed. Opponents risk a false dichotomy, implying either full hearings or no due process, ignoring administrative reviews as well as existing law..
    • Confirmation: False. The Alien Enemies Act, as outlined in 50 U.S.C. § 21 is clear, the President may direct the apprehension, restraint, or removal of individuals and it was ruled that "the Alien Enemy Act precludes judicial review of the removal order" (Ludecke v. Watkins, p. 335 U. S. 163-166). Furthermore, as detailed in Claim 1 above, immigration judges operate within the EOIR, subject to BIA review, which the Attorney General can override (8 C.F.R. § 1003.1(d)(1)(i)).

  3. Claim 3: The Alien Enemies Act and FTO designation lawfully override withholding orders for national security.

    • Argument: The Act authorizes deportations during war, invasion or predatory incursions, potentially encompassing FTOs like MS-13 if deemed a threat. Trump v. United States (2024) suggests presidential actions in national security are unreviewable, stating, “courts cannot examine the president’s actions on subjects within his conclusive and preclusive constitutional authority” (Trump v. United States, 603 U.S. 593, 609). Analysis argues that “designating MS-13 as an FTO aligns with national security priorities, justifying executive action” (Political Contrast, 2025c). Opponents counter that the Act’s text limits it to wartime or clear invasions, and its use for gangs lacks precedent (Ebright, 2023). However, analysis confirms "Labeling the Act as solely a 'wartime law' ignores its explicit text, which includes 'invasion or predatory incursion' as alternative triggers, not requiring a declared war (50 U.S.C. § 21)" (Political Contrast, 2025a).
    • Logical Fallacies: Proponents may engage in overgeneralization, equating gang activity with “invasion.” Opponents may commit a strawman fallacy, mischaracterizing the Act’s use as targeting broad populations rather than FTOs.
    • Confirmation: True. While the Act’s peacetime applicability to FTOs lacks historical precedence, the Act's text "includes 'invasion or predatory incursion' as alternative triggers, not requiring a declared war (50 U.S.C. § 21)" (Political Contrast, 2025a). Furthermore, "the Alien Enemy Act precludes judicial review of the removal order" (Ludecke v. Watkins, p. 335 U. S. 163-166). When taken together, it is abundantly clear that it is within the President's Article II authority to designate a group an FTO, proclaim the enactment of the Alien Enemies Act, and the President has authority to detain or deport aliens from hostile nations during “invasion or predatory incursion” without hearings (50 U.S.C. § 21; Ludecke v. Watkins, p. 335 U. S. 160, 163-171 (1948); 8 C.F.R. § 1003.1(d)(1)(i)).

False Narratives and Logical Fallacies

  • False Narrative: Immigration judges are independent like Article III judges, immune from executive oversight. This is incorrect, as they are EOIR officials subject to Attorney General review (Executive Office for Immigration Review, 2023; Political Contrast, 2025c).
  • False Narrative: The Alien Enemies Act is strictly limited to declared wars. This is false as its text includes “invasion” or “predatory incursions,” allowing interpretive flexibility (50 U.S.C. § 21; Ebright, 2023).
  • Logical Fallacy: Critics commit a strawman fallacy, mischaracterizing the Act’s use as targeting broad populations rather than FTOs.

Summary

Critics claim using the Alien Enemies Act to override withholding orders without a formal hearing in peacetime raises due process concerns. Critics also claim there are concerns regarding the Attorney General's authority, under the President’s Title II authority, having the legal power to overrule an immigration judge’s withholding order. However, the law is very clear on this subject.

Article II of the U.S. Constitution vests executive power in the President, who delegates immigration enforcement to the Attorney General (U.S. Const. art. II, § 1, cl. 1; Senate.gov, n.d.). Immigration judges are administrative officials within the EOIR, under the Department of Justice, and subject to the Attorney General’s oversight. The Code of Federal Regulations allows the Attorney General to review and vacate decisions of the Board of Immigration Appeals (BIA), which hears appeals from immigration judges, extending this oversight to their rulings (8 C.F.R. § 1003.1(d)(1)(i); Executive Office for Immigration Review, 2023).

The Alien Enemies Act of 1798 (50 U.S.C. § 21) grants the President authority to detain or deport aliens from hostile nations during wartime or “invasion or predatory incursion” without hearings (50 U.S.C. § 21; Political Contrast, 2025a). Supreme Court rulings, such as United States v. Texas (2023) and Trump v. United States (2024), affirm the Executive’s discretion in immigration enforcement and the unreviewability of certain presidential actions within constitutional authority (United States v. Texas, 599 U.S. 670, 679; Trump v. United States, 603 U.S. 593, 609).

The Alien Enemies Act, as outlined in 50 U.S.C. § 21 authorizes that the President may direct the apprehension, restraint, or removal of individuals and it was ruled in Ludecke v. Watkins (1948) that "the Alien Enemy Act precludes judicial review of the removal order" (Ludecke v. Watkins, p. 335 U. S. 163-166). In addition, Trump v. United States (2024) suggests presidential actions in national security are unreviewable, stating, “courts cannot examine the president’s actions on subjects within his conclusive and preclusive constitutional authority” (Trump v. United States, 603 U.S. 593, 609). 

Regardless of the large amount of evidence: exisiting laws, legal precedents, prior rulings, etc., analyses suggest this issue will continue to be debated for a very long time.


References

Ebright, K. Y. (2023). The Alien Enemies Act, explained. Brennan Center for Justice. https://www.brennancenter.org/our-work/research-reports/alien-enemies-act-explained

Executive Office for Immigration Review. (2023). Office of the Chief Immigration Judge. U.S. Department of Justice. https://www.justice.gov/eoir/office-of-the-chief-immigration-judge

Gouveia, R. (2025). Trump’s EMERGENCY appeal! Kilmar RELEASED?? Letita deserves DISCIPLINE! https://www.youtube.com/watch?v=V2hPl5IV-k0

Greene, M. T. (2025, April 16). [Photo posted on Congresswoman Marjorie Taylor Greene’s Facebook page]. Facebook. https://www.facebook.com/100063821975382/posts/1167578502046205/?_rdr

Ludecke v. Watkins, 335 U.S. 160 (1948). Retrieved from https://supreme.justia.com/cases/federal/us/335/160/

Political Contrast. (2025a). The Alien Enemies Act: Critical analysis. https://politicalcontrast.blogspot.com/2025/04/the-alien-enemies-act-critical-analysis.html

Political Contrast. (2025b). Kilmar Abrego Garcia: Timeline. https://politicalcontrast.blogspot.com/2025/04/kilmar-abrego-garcia-timeline.html

Political Contrast. (2025c). Updated critical analysis of withholding orders and executive authority. https://politicalcontrast.blogspot.com/2025/04/updated-critical-analysis-of.html

Senate.gov. (n.d.). The Constitution of the United States. https://www.senate.gov/about/origins-foundations/senate-and-constitution/constitution.htm

United States v. Texas, 599 U.S. 670 (2023). Retrieved from https://www.courtlistener.com/opinion/10049663/united-states-v-texas/?q=United+States+v.+Texas%2C+599+U.S.+670+%282023%29.

Trump v. United States, 603 U.S. 593 (2024). Retrieved from https://www.courtlistener.com/opinion/9987186/trump-v-united-states/?q=Trump+v.+United+States%2C+603+U.S.+593+%282024%29

Zadvydas v. Davis, 533 U.S. 678 (2001). Retrieved from https://supreme.justia.com/cases/federal/us/533/678/

8 C.F.R. § 1003.1(d)(1)(i). (2023). Code of Federal Regulations. Retrieved from https://www.law.cornell.edu/cfr/text/8/1003.1

8 U.S.C. § 1231(b)(3). (2023). Immigration and Nationality Act. Retrieved from https://www.uscis.gov/laws-and-policy/legislation/immigration-and-nationality-act

50 U.S.C. § 21. (2023). Alien Enemies Act. Retrieved from https://www.law.cornell.edu/uscode/text/50/21

50 U.S.C. §§ 21–24 (1952). https://tile.loc.gov/storage-services/service/ll/uscode/uscode1952-00505/uscode1952-005050003/uscode1952-005050003.pdf





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Monday, April 21, 2025

The Alien Enemies Act: A Critical Analysis


 

Introduction

The Alien Enemies Act of 1798, codified at 50 U.S.C. Ch. 3, §§ 21–24, is a federal statute granting the President authority to apprehend, restrain, and remove non-naturalized individuals from nations deemed hostile during specific conditions. Enacted amid tensions with France during the Quasi-War, the Act has been invoked sparingly, notably during the War of 1812, World War I, and World War II. Its recent invocation in 2025 by President Donald Trump to target alleged members of the Venezuelan gang Tren de Aragua has reignited debate over its scope, legality, and implications for civil liberties. This article provides a detailed explanation of the Act’s provisions, critically analyzes prominent claims surrounding its use, and evaluates the judicial branch’s authority to intervene in its application. By dissecting the Act’s legal framework and addressing opposing viewpoints, false narratives, and logical fallacies, this analysis aims to clarify its purpose and limitations.

Critical Analysis

The Alien Enemies Act, as outlined in 50 U.S.C. § 21, establishes conditions under which the President may act against non-naturalized individuals from a hostile nation or government. The statute specifies two primary conditions: (1) a declared war or an invasion/predatory incursion (perpetrated, attempted, or threatened) by a foreign nation or government, and (2) a presidential proclamation of the event. If these conditions are met, the President may direct the apprehension, restraint, or removal of individuals aged 14 and older who are natives, citizens, denizens, or subjects of the hostile nation or government and are not naturalized U.S. citizens (50 U.S.C. § 21). Sections 22–24 outline protections for non-hostile aliens, judicial roles, and marshal duties. Below, we analyze key claims about the Act, forming logical arguments, identifying fallacies, and confirming or refuting each assertion.

Claim 1: The Alien Enemies Act Is Only for Use During Wartime

Opposing Viewpoint/Claim: Critics argue that the Act is exclusively a wartime measure. For example, an Associated Press article states, “Trump’s critics insist he is wrongly invoking an act designed for use during declared wars” (Jalonick, 2025). Similarly, Scott Michelman, legal director of the ACLU of the District of Columbia, claims, “Trump’s attempt to twist a centuries-old wartime law to sidestep immigration protections is an outrageous and unlawful power grab” (Jalonick, 2025).

Logical Argument: The claim hinges on the Act’s historical use during declared wars (e.g., World War II) and its enactment during the Quasi-War with France. Proponents of this view argue that the Act’s language, context, and past applications limit its use to formal wartime scenarios, asserting that invoking it for non-state actors like gangs in peacetime exceeds its intended scope. They contend that modern immigration and criminal laws render the Act obsolete, as federal agencies can address threats without resorting to such broad powers (Ebright, 2024).

False Narratives/Logical Fallacies:

  • Overgeneralization: Labeling the Act as solely a “wartime law” ignores its explicit text, which includes “invasion or predatory incursion” as alternative triggers, not requiring a declared war (50 U.S.C. § 21). This misrepresents the Act’s dual conditions.

  • Strawman: Critics frame the Act’s use as an attempt to “sidestep immigration protections,” implying malicious intent without evidence that the Act overrides existing legal frameworks (Jalonick, 2025).

  • Appeal to Tradition: Arguing that the Act’s historical use in wartime limits its modern application dismisses the possibility of evolving threats, such as transnational criminal organizations, meeting the “invasion” criterion.

Confirmation/Refutation: The claim is false. The Act’s text clearly states two conditions: (1) “a declared war” or “any invasion or predatory incursion…by any foreign nation or government,” and (2) a presidential proclamation (50 U.S.C. § 21). The use of “or” indicates that either a declared war or an invasion/incursion suffices, meaning the Act is not exclusively for wartime. The 2025 proclamation targeting Tren de Aragua asserts that the gang, allegedly aligned with the Venezuelan government, constitutes an “invasion or predatory incursion” (The White House, 2025b) in addition to the designation of Tren de Aragua and MS-13 as Foreign Terrorist Organizations (The White House, 2025a). While the validity of this designation is debatable, the Act’s language does not restrict its use to declared wars, refuting the claim.


Claim 2: The Alien Enemies Act Is a “Dangerous Wartime Authority” That Targets Civilians Based on Ancestry

Opposing Viewpoint/Claim: Katherine Yon Ebright of the Brennan Center for Justice labels the Act a “dangerous wartime authority” that “permits summarily detaining and deporting civilians merely on the basis of their ancestry” (Ebright, 2024). Ebright equates its current use with historical internments of Japanese, German, and Italian noncitizens during World War II, suggesting it enables discriminatory mass deportations without due process.


Logical Argument: Ebright’s claim emphasizes the Act’s potential for abuse, citing its role in World War II internments, which targeted noncitizens based on national origin rather than individual actions. She argues that the Act’s broad language allows presidents to bypass due process and equal protection, conflicting with modern constitutional standards (Ebright, 2024). Critics like Ebright assert that invoking the Act against alleged gang members risks repeating past injustices, especially if applied to entire nationalities without evidence of hostility.

False Narratives/Logical Fallacies:

  • Loaded Language/Appeal to Emotion: The phrase “dangerous wartime authority” is biased, framing the Act as inherently harmful and wartime-exclusive, which misaligns with its text (50 U.S.C. § 21).

  • Strawman: The term “civilians” mischaracterizes the Act’s scope, which applies to “natives, citizens, denizens, or subjects” of a hostile nation, not civilians broadly. The 2025 proclamation targets specific gang members, not all Venezuelans (The White House, 2025b).

  • False Equivocation: Equating the Act’s use against alleged gang members with World War II internments ignores differences in context, scale, and intent. The current use targets a designated terrorist organization, not an entire ethnic group (Ebright, 2024).

  • Misrepresentation: Claiming detentions are “merely on the basis of ancestry” is false, as the Act requires a connection to a hostile nation or government, and the 2025 proclamation specifies membership in Tren de Aragua (50 U.S.C. § 21; The White House, 2025b).

Confirmation/Refutation: The claim is false. The Act is not solely a “wartime authority,” as discussed above, and its application is not “merely” based on ancestry but on affiliation with a hostile entity, as defined by the President (50 U.S.C. § 21). Ebright’s concern about potential abuse is valid, given historical precedents like the internment of Japanese noncitizens, which relied on the Act (Ebright, 2024). However, the 2025 use of the Act targets a specific group designated as a Foreign Terrorist Organization (The White House, 2025a).


Claim 3: The Act Allows an “End Run” Around Criminal and Immigration Law

Opposing Viewpoint/Claim: Ebright claims, “The language of the law is broad enough that a president might be able to wield the authority in peacetime as an end run around the requirements of criminal and immigration law” (Ebright, 2024).

Logical Argument: Critics argue that the Act’s streamlined process for detention and removal bypasses standard immigration procedures, such as hearings before an immigration judge, and criminal law requirements, like evidence of individual culpability. They contend that this enables mass deportations without due process, undermining constitutional protections (Ebright, 2024). Supporters, however, argue that the Act is a complementary tool for national security, not a replacement for existing laws, and its use is constrained by specific conditions (The White House, 2025b).

False Narratives/Logical Fallacies:

  • Slippery Slope: Suggesting the Act is an “end run” implies it inherently undermines all legal protections, without evidence that it negates existing statutes.

  • Misrepresentation: The claim overlooks the Act’s requirement for a presidential proclamation and specific conditions, which limit its scope to designated hostile entities, not general immigration enforcement (50 U.S.C. § 21).

Confirmation/Refutation: The claim is refuted. The Act operates within a specific framework—declared war or invasion/incursion—and does not override criminal or immigration laws but provides an additional mechanism for addressing national security threats (50 U.S.C. § 21). The 2025 proclamation targets Tren de Aragua members, not all immigrants, and deportations under other authorities have continued, indicating the Act is not a blanket substitute (Jalonick, 2025). Section 23 ensures judicial involvement for specific conditions, further aligning with legal processes (50 U.S.C. § 23).

Judicial Authority to Stop Actions Under the Act

Question: What authority, if any, does the judicial branch have to stop actions taken under this Act by the President?

Analysis: The judicial branch’s authority to review actions under the Alien Enemies Act is limited but not nonexistent. In Ludecke v. Watkins (1948), the Supreme Court held that the Act precludes judicial review of the President’s determination of when a war ends, deeming it a “political question” (Ludecke v. Watkins, p. 335 U.S. 160, 1948). Specifically the court held that:

  • "The Alien Enemy Act precludes judicial review of the removal order" (Ludecke v. Watkins, p. 335 U. S. 163-166).
  • "The Alien Enemy Act, construed as permitting resort to the courts only to challenge its validity and construction, and to raise questions of the existence of a "declared war" and of alien enemy status, does not violate the Bill of Rights of the Federal Constitution" (Ludecke v. Watkins, p. 335 U. S. 170-171).
  • "The fact that hearings are utilized by the Executive to secure an informed basis for the exercise of the summary power conferred by the Act does not empower the courts to retry such hearings, nor does it make the withholding of such power from the courts a denial of due process. (Ludecke v. Watkins, p. 335 U. S. 171-172).

In the opinion of the court, "Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies. The President is authorized, in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed, on the part of the United States, toward the aliens who become so liable; 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, refuse or neglect to depart therefrom, and to establish any other regulations which are found necessary in the premises and for the public safety" (Ludecke v. Watkins, p. 335 U. S. 162).

Furthermore, in this case the petitioner was denied " a writ of habeas corpus for release from detention" whereas "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" (Ludecke v. Watkins, p. 335 U. S. 163-164).

Specifically to the question of due process, the court also stated, "The fact that hearings are utilized by the Executive to secure an informed basis for the exercise of summary power does not argue the right of courts to retry such hearings, nor bespeak denial of due process to withhold such power from the courts" (Ludecke v. Watkins, p. 335 U. S. 172). If any question should remain, the court further elaborated that such "powers may be abused, no doubt, but that is a bad reason for having judges supervise their exercise, whatever the legal formulas within which such supervision would nominally be confined (Ludecke v. Watkins, p. 335 U. S. 172).

The Court reasoned that matters of war and peace are within the political branches’ purview, limiting courts’ ability to second-guess executive actions. Legal scholars argue that the judiciary can intervene if the President’s actions are not made in good faith or exceed statutory bounds, as established in Baker v. Carr (1962), which allows review of “manifestly unauthorized” exercises of power (Ebright, 2025). However, these arguements are based on a case that does not involve the Alien Enemies Act of 1798 which make these arguments moot.

Conclusion: The text of the Alien Enemies Act of 1798 and the Supreme Court ruling in Ludecke v. Watkins (1948) are clear, the Act "precludes judicial review" and "its terms, purpose, and construction leave no doubt. The language employed by the Fifth Congress could hardly be made clearer" (Ludecke v. Watkins, p. 335 U. S. 163-164).

Summary

The Alien Enemies Act of 1798 grants the President authority to apprehend, restrain, and remove non-naturalized individuals from hostile nations or governments under two conditions: a declared war or an invasion/predatory incursion, followed by a presidential proclamation (50 U.S.C. § 21). Sections 22–24 provide protections for non-hostile aliens, and judicial oversight when the court has "criminal jurisdiction" and a "complaint against any alien enemy resident" and "conveyed before such court, judge, or justice" (50 U.S.C. §§ 21–24). Critical analysis refutes claims that the Act is solely for wartime, a “dangerous” tool targeting civilians based on ancestry, or an “end run” around existing laws. The Act’s text allows peacetime use for invasions/incursions, targets specific hostile entities, and operates alongside other legal frameworks. However, its broad language raises concerns about potential abuse. The Act remains a potent but controversial tool, balancing national security with civil liberties.

References


Associated Press. (2025, April 8). Supreme Court allows Trump to deport Venezuelans under Alien Enemies Act, after judges’ review. AP News. https://apnews.com/article/alien-enemies-trump-immigration-deportations-21a62ede23b8c493b60d00a9c125722f


Ebright, K. Y. (2024, October 16). The Alien Enemies Act. Brennan Center for Justice. https://www.brennancenter.org/our-work/policy-solutions/alien-enemies-act


Ebright, K. Y. (2025, March 20). The courts can stop abuse of the Alien Enemies Act – the political question doctrine is no bar. Just Security. https://www.justsecurity.org/109330/political-question-doctrine-alien-enemies-act/


Jalonick, M. C. (2025, April 8). The Alien Enemies Act: What to know about a 1798 law that Trump has invoked for deportations. AP News. https://apnews.com/article/alien-enemies-trump-immigration-deportations-21a62ede23b8c493b60d00a9c125722f


The White House. (2025a, January 20). Designating Cartels And Other Organizations As Foreign Terrorist Organizations And Specially Designated Global Terrorists. https://www.whitehouse.gov/presidential-actions/2025/01/designating-cartels-and-other-organizations-as-foreign-terrorist-organizations-and-specially-designated-global-terrorists/


The White House. (2025b, March 15). Invocation of the Alien Enemies Act regarding the invasion of the United States by Tren de Aragua. 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/


Vladeck, S. (2024, October 14). Alien Enemies in the Supreme Court. Steve Vladeck. https://www.stevevladeck.com/p/103-alien-enemies-and-the-court


Ludecke v. Watkins, 335 U.S. 160 (1948). Retrieved from https://supreme.justia.com/cases/federal/us/335/160/


Trump v. J.G.G., No. 24A886 (U.S. April 7, 2025). Retrieved from https://www.supremecourt.gov/opinions/24pdf/24a931_2c83.pdf

50 U.S.C. §§ 21–24 (1952). https://tile.loc.gov/storage-services/service/ll/uscode/uscode1952-00505/uscode1952-005050003/uscode1952-005050003.pdf




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