The White House today (March 15) invoked the Alien Enemies Act, which permits the government to detain and deport persons who are participating in an invasion. The White House said that members of Tren de Aragua( TdA) are part of an Venezuelan-backed invasion: “I find and declare that TdA is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States. TdA is undertaking hostile actions and conducting irregular warfare against the territory of the United States both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.”

To win in court, the administration needs to show that members of Tren de Aragua are agents of the government of Venezuela, that Venezuela is waging war against the United States, and that the persons to be deported are members of Tren de Aragua. The ACLU is leading the court challenge to the order.

The order does not affect citizens or lawful permanent residents – the latter exclusion is interesting because in the Mahmoud Kahlil case, the Kahlil, is a lawful permanent resident. The internment of Japanese in World War 2, two thirds of whom were American citizens, was done using Executive Order 9066 (1942) and not the Alien Enemies Act, because the latter did not apply to citizens.

Impacted at this time are the some 300 Tren de Aragua members who have been arrested and are scheduled to be flown and put into prison in El Salvador, for which the United States will reportedly pay El Salvador $6 million for one year of detention. Apparently another 214 persons have been arrested.

The Alien Enemies Act is one of four Alien and Sedition Acts enacted in 1798 in response to threats of war and concerns about enemy sympathizers. It applies only when there is a declared war or de facto incursion of a foreign power.

Among its provisions is the following: “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.” The Supreme Court in The Supreme Court in Ludecke v. Watkins (1948) established the power to deport without court review.

For text and background of all Aliens and Sedition Acts, go here.