The Alien Enemies Act has been invoked in policy legislation only three times in United States history: the War of 1812, World War I, and World War II. Originally legislated by President John Adams, the Act grants the executive the power to deport noncitizens of countries deemed hostile to the United States. In centuries since, the Act became virtually obsolete, and its most recent use in World War II was deemed “overruled in the court of history” by United States Supreme Court Chief Justice John Roberts.
Today, however, the United States finds itself in “a constitutional crisis of unprecedented historical proportions,” as Cliff Elgarten, former clerk to Supreme Court Justice William Brennan, explains. It is a crisis in which the Alien Enemies Act can be invoked by an unchecked executive not to alleviate a national (or global) crisis, but to advance a political agenda with complete disregard to the law and its precedent.
Targeting Immigrants by Reshaping the Law
The Trump administration, via the Supreme Court and the judicial system, has made a concerted effort to justify deporting immigrants—legal or not—without due process. Trump invoked the Alien Enemies Act under the vague claim that Venezuelan gang violence constitutes an “invasion” justifying immigrants’ removal. The Supreme Court responded by ending the temporary halt to deportations held by a district judge, allowing Trump to use the Act as long as the administration allowed accused Venezuelan gang members the chance to fight their deportation orders legally.
The Department of Justice has brought increasing charges forward under the revival of forgotten statutes, such as the 1940 Alien Registration Act, which was recently updated to require registration and proof of registration for all immigrants over the age of fourteen. And powers like import-tariff laws and emergency statutes have enabled the government to threaten mass deportations of up to twenty million people. Senior officials have even debated suspending the writ of habeas corpus—which ensures that those held in custody can challenge their detention before a court—under the Invasion Clause of the Constitution. So far, the Supreme Court’s silence on these constitutionally impudent measures has only inflamed its gradual retreat from its role as a check on executive outreach, leaving millions of people vulnerable.
Ideological Judiciary Shifts
The infusion of conservative judges throughout the federal court system, beyond just the five Trump-appointed justices on the Supreme Court, has fueled cases seeking to increase deportations. The Trump administration has entirely reshaped the U.S. Immigration System, deporting an average of 17,200 people in each month of 2025. Yet Immigration and Customs Enforcement (ICE) data shows that roughly half of those deported possessed no criminal record. The uptick in wrongful deportations stems not only from a shift in enforcement but also in legal philosophy. The Court’s interim order to allow the Alien Enemies Act passed 5-4, with only conservative, male judges comprising the majority opinion. Conservative judges have shown greater deference to executive authority, creating a legal cover for the erosion of due process and limited scope for judicial review.
Meanwhile, numerous moderate and, naturally, liberal judges have opined in dissent. U.S. District Judge Fernando Rodriguez Jr., a Trump appointee, wrote that Trump’s invocation of the act “exceeds the scope of the statute” and that “invasions” require a military incursion. Just two weeks later, however, Judge Stephanie Haynes of Pennsylvania ruled in opposition that the president is legally allowed to use the Act to deport Venezuelans accused of belonging to the Tren de Aragua, a Venezuelan gang.
There is a new national framework in the United States’ legal system: courts are increasingly willing to uphold aggressive executive measures if they are framed as matters of national security. Despite the ambiguity in accusations, this ideological divide in the judiciary has reshaped not just the way laws are interpreted, but also who is protected by them. Thousands of deported migrants to El Salvador, Guatemala, Venezuela, and more still possess the right to challenge their removals. But the Court’s procedural rulings channel these challenges into such narrow cases that it is nearly impossible for them to mount a unified defense.
Impact and the Need for Reform
Constitutional safeguards for noncitizens and citizens alike are under unprecedented contention. Treating immigration as a wartime occupation, the Trump administration effectively bypasses normal due process and asylum procedures—procedures central to American democracy. If sustained, the tactical weaponization of the judicial system against immigrants and their families will perpetuate their continued suppression through familial separation and the complete surrender of legal status.
The Trump administration has used the legal system to deny to the vast majority of immigrants in the country the democratic foundations that have long made America the land of opportunity. The administration encourages immigrants to abide by the law when entering the United States, but falls short in his own inability to adhere to it. And what may begin with the targeting of immigrants sets the groundwork for the extended constitutional illegitimacy of an unchecked, unbalanced executive. If this trend toward unilateralism continues, citizenship itself—for immigrants of all legal statuses and origins—will no longer be a concrete protection by law, but a conditional status granted or revoked at the discretion of political will.