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| The Alien Enemies Act is the law that Franklin D. Roosevelt used to place Japanese Americans in concentration camps in the 1940s. Trump's order is quite different in nature, but is problematic for different reasons. |
NOTE: I will be following this story and adding information over the next days or even weeks.
The President invoked the 18th Century Alien Enemies Act against members of Venezuelan gang, Tren de Aragua today. The order requires the arrest and immediate deportation of all affiliates of the gang who are not Lawful Permanent Residents or Citizens of the United States. By invoking this act, Trump is signaling that these immigrants will not have any constitutional protections, including any court protections. This could include undocumented immigrants, but also immigrants under a legal status such as Temporary Protected Status or work visas, etc...
Tren de Aragua began as a prison gang in about 2005, but later spread out into countries in South America, and then up into North America, including the United States, in the late 20-tens. It is a loosely-organized gang in the US, which has made it hard to trace. Gang members sometimes have identifying tattoos, but generally they do not.
It is estimated that fewer than 1,000 Tren de Aragua members are active in the United States. But I believe Trump has his eyes on many, many more people than 1,000. And that led me to look into the issue a little further: Trump wouldn't make such a huge media showing out of such a small number of people.
World War II
After the bombing of Pearl Harbor on December 7, 1941, President Franklin Roosevelt signed an executive order invoking the Alien Enemies Act to have "excluded" individuals interned by the Department of Defense. The act doesn't state a race or nationality of origin, but was primarily interpreted as Japanese immigrants and American Citizens of Japanese heritage. They were taken to internment camps—large prisons built like towns, and fully fenced and guarded.
In the months prior to the mass internment of people of Japanese heritage, the United States had been gathering up people of German and Italian heritage and placing them in internment camps. But the focus turned to people of Japanese descent after the bombing of Pearl Harbor, and the style of internment became more like the American concentration camps some of us learned about in school.
I never learned anything at all about internment of Japanese Americans until I moved out of my rural Nevada home town and went to university.
Is This Order Similar To The WWII Order?
This order is different from Roosevelt's 1941 order in many ways. It is specific to Tren de Aragua members who do not have Lawful Permanent Resident Status and who are not US citizens. It doesn't call for long term internment, but for immediate deportation. So, its scope is much narrower and I believe US citizens are unlikely to be locked up as criminal aliens.
The Big "However"
Tren de Aragua is not an organized gang in the US. And law enforcement doesn't know how to identify gang members. Law enforcement also has no way to know if a person is even from Venezuela if they're undocumented—the government of Venezuela will not cooperate and will neither confirm nor deny whether someone originated from their country. People arrested and accused of being in the gang don't have a defense against the allegation. Law enforcement can't prove that the people are in a gang, and it's left to the accused to prove they are not, which is impossible.
The burden of proof is flip-flopped and therefore the accused will be stuck in a circular hell of being guilty because they cannot prove the impossible. They will not have any court protections whatsoever, and therefore will not even be able to make their case before a judge. The administration alone, and its agencies, will have sold discretion to make accusations and decide whether their accusations are correct.
Look at how the Trump administration deals with these kinds of situations. For example, Columbia University. The university engaged in fascist activities on behalf of the government to prove its compliance, and was still found guilty by the government. No matter what they could have done to prove their fidelity to Trump, it could not have been enough. The outcome was a foregone conclusion. Same with Trump's claim of Canada's non-cooperation with stopping the flow of fentanyl. No matter what Canada did, their guilt was already settled in the administration's mind.
I believe we will see Venezuelans under work visas or temporary protected status arrested and deported, and all their belongings confiscated, based on unfounded accusations, without any proof of gang affiliation.
March 16, 2025
A Federal District Court judge put a temporary pause on the president's use of this power, ordering that 300 alleged criminals that were already sent away in flights to El Salvador be returned. The administration defied the order and sent them regardless. El Salvador has agreed to keep them in a prison there.
April 5, 2025
Chief Justice of the Supreme Court, John Roberts, put a hold on the District Court's pause on the president's use of the Alien Enemies Act, which will allow the administration to continue arresting and deporting people to a notoriously violent El Salvador labor camp without any due process. We know of at least two people deported who are not members of a gang, who should be brought back, but who will not be. Their cases are working their way through the court system. However, Trump has been ordered to bring one of them back, and has refused. The administration lawyer who admitted that he was deported by mistake, has been fired.
April 13, 2025
Among the deportees to El Salvador were innocent men. The suits for one of those men—Kilmar Abrego Garcia—made its way to the Supreme Court, where all nine justices ordered the Trump administration to bring the man back to the United States. The administration has so far refused to do so, and has not taken action in any way to do so. This is a constitutional crisis (in my opinion, this entire presidency so far has been one huge constitutional crisis).
The Alien Enemies Act | Brennan Center for Justice
Executive Order 9066 - Wikipedia
50 USC 22: Time allowed to settle affairs and depart
What We Know About Tren de Aragua’s US Presence
Organized crime expert explains challenges of identifying Tren de Aragua members
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