The Alien Enemies Act Doesn’t Say What Trump Thinks It Does—Here’s the Truth

Trump isn’t just abusing the Alien Enemies Act—he’s violating it. And what he’s doing has nothing to do with lawful removal, and everything to do with fascism.

May 02, 2025

Let’s be crystal clear from the start: the Alien Enemies Act does not grant the President the power to unilaterally round up and expel immigrants. It doesn’t matter how many times Trump and his echo chamber scream “wartime powers”—the actual law says the opposite.

So, we’re going to do what they hope you won’t: read the damn law. Carefully. Fully. And we’re going to walk through it logically—like a flowchart—because once you do, there’s no escape hatch. Every path under the law leads to due process. None of them lead to fascism.

🔍 Step 1: Has Congress Declared War or Has There Been an Invasion?

This is an important question—and it may very well be that the answer alone disqualifies Trump’s use of the Alien Enemies Act. The law only activates “whenever there shall be a declared war” or an “invasion or predatory incursion” by a foreign government. The problem? It doesn’t say who decides what counts as war, invasion, or incursion—and Congress has, over time, built loopholes that give the President increasing leeway to make unilateral declarations of “national emergency.”

So for argument’s sake, let’s give the President the benefit of every doubt. Let’s say Trump claims that a foreign gang, allegedly operating with a hostile government’s support, constitutes an “invasion.” Let’s assume that’s enough to activate the statute.

Even if you grant that—he still loses.
Because once the statute is active, the rules inside it still matter. And none of them give him the power he’s claiming.

🔍 Step 2: The Two Paths That Can Lead to an Alien’s Removal

Now that we’ve granted the statute is “activated,” we’re left with a simple question: What does the law actually allow the government to do next?

The Alien Enemies Act lays out two distinct paths by which an alien may be removed from the country:

Path 1: Executive-Initiated Removal (Section 1)
The President, through a proclamation or public act, may issue regulations specifying how aliens from the hostile nation should be treated, including conditions for restraint or removal—but only under specific limitations.
Path 2: Judiciary-Initiated Removal (Section 2)
Courts and judges may remove aliens upon complaint and hearing, but only after cause is shown and due process has been afforded.

Together, these are the only two mechanisms the statute provides. One is led by the Executive; the other by the Judiciary. Neither is a blank check. And both come with built-in procedural obligations.

We’ll start with Section 2, because it’s the clearer of the two. It maps most closely to what Americans would expect in any system governed by law—a court complaint, a hearing, and a ruling based on evidence.

So let’s start!

Step 2-A: The Judiciary Path

For starters, let’s look at the text of the law, which is unusually clear despite being written over two centuries ago:

“SEC. 2. And be it further enacted, That after any proclamation shall be made as aforesaid, it shall be the duty of the several courts of the United States, and of each state, having criminal jurisdiction, and of the several judges and justices of the courts of the United States, and they shall be, and are hereby respectively, authorized upon complaint, against any alien or alien enemies, as aforesaid, who shall be resident and at large within such jurisdiction or district, to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President of the United States shall and may establish in the premises, to cause such alien or aliens to be duly apprehended and convened before such court, judge or justice; and after a full examination and hearing on such complaint. and sufficient cause therefor appearing, shall and may order such alien or aliens to be removed out of the territory of the United States, or to give sureties of their good behaviour, or to be otherwise restrained, conformably to the proclamation or regulations which shall and may be established as aforesaid, and may imprison, or otherwise secure such alien or aliens, until the order which shall and may be made, as aforesaid, shall be performed.”

Let’s start with what should be obvious: this section reads like a textbook due process procedure.

Once the President issues a proclamation identifying a foreign power as hostile, courts don’t just start rounding people up. There has to be a complaint—that is, an allegation that a particular alien is posing a danger to public peace or violating one of the President’s regulations.

Only then—after a complaint is made—can a court or judge cause the apprehension of said individual and bring them before the bench. And then?

“After a full examination and hearing on such complaint, and sufficient cause therefor appearing…”

That is the key. A full hearing, not a rubber stamp. And the court can act only if cause is shown—not based on race, country of origin, suspicion, or blanket category, but on individualized evidence of danger or noncompliance.

If that burden is met, the court may then:

Order removal,
Require sureties of good behavior, or
Impose restraint or imprisonment in conformity with the President’s regulations.

This is not some sprawling executive dragnet. It’s a judicial process. Complaint → Hearing → Cause → Ruling.

And just in case anyone still thinks this is some antiquated relic with no modern force: this is exactly what due process is supposed to look like—individualized proceedings, neutral adjudicators, and restraint tailored to actual findings.

That’s the judiciary path. It’s real law. And it’s nothing like what Trump is doing.

So now let’s turn to the path he claims gives him power: Section 1.

Step 2-B: The Executive Path

This is where things get murky—and dangerously easy to misinterpret. Section 1 is wordier, less linear, and doesn’t follow the neat complaint-hearing-decision structure of Section 2. That’s exactly why it’s the part most easily abused or misunderstood—especially by those looking to justify sweeping, unilateral actions by the President.

So, let’s break it down carefully, line by line, and isolate each of the explicit limitations baked into the text—limitations that Trump and his defenders conveniently ignore.

The full text of Section 1 reads:

“SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President of the United States shall make public proclamation of the event, 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. And the President of the United States shall be, and he is hereby authorized, in any event, as aforesaid, by his proclamation thereof, or other public act, to direct the conduct to be observed, on the part of the United States, towards the aliens who shall become liable, as aforesaid; 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, shall refuse or neglect to depart therefrom; and to establish any other regulations which shall be found necessary in the premises and for the public safety: Provided, that aliens resident within the United States, who shall become liable as enemies, in the manner aforesaid, and who shall not be chargeable with actual hostility, or other crime against the public safety, shall be allowed, for the recovery, disposal, and removal of their goods and effects, and for their departure, the full time which is, or shall be stipulated by any treaty, where any shall have been between the United States, and the hostile nation or government, of which they shall be natives, citizens, denizens or subjects: and where no such treaty shall have existed, the President of the United States may ascertain and declare such reasonable time as may be consistent with the public safety, and according to the dictates of humanity and national hospitality.”

First, as stated in Step 1, we’re granting—for the sake of argument—that Trump can activate the statute simply by declaring that Tren de Aragua, a Venezuelan gang allegedly acting with the knowledge or support of the Venezuelan government, constitutes an “invasion.” The statute doesn’t define that term precisely, and Congress has left the door cracked open over the decades. So fine. Let’s give him that.

But even once activated, the law immediately limits who can be targeted. The first limitation we encounter comes here:

“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… and to provide for the removal of those, who, not being permitted to reside within the United States”

We’re quoting this all together—even with the text in between—because it functions as one legal unit: the second half further qualifies and narrows the first. That intervening language gives the President power to issue proclamations and regulations about the treatment of aliens—but none of it changes who is eligible to be removed under the statute.

What matters is the logical connection: the second part further limits the first.

So, let’s list the limitations here:

Only Males 14 and older
Those who are not naturalized US Citizens OR permitted to reside within the US

While the first qualification is clear, the second is extremely important, and we will get back to its nuance once we have listed all the explicit limitations.

The next limitation comes directly after the quote above:

“and to provide for the removal of those, who, not being permitted to reside within the United States, shall refuse or neglect to depart therefrom;”

So, to be qualified for removal, the alien in question must first, “refuse or neglect to depart” on their own, i.e., no removal can be enforced until an individual has been given a reasonable opportunity to depart by their own free will. This too will have some nuance, which we’ll return to soon.

The next limitation provides for different treatment for those who are not chargeable with actual hostility, by giving them additional rights:

“and who shall not be chargeable with actual hostility, or other crime against the public safety, shall be allowed, for the recovery, disposal, and removal of their goods and effects, and for their departure…”

This unambiguously states that any alien, who, having met all the previous requirements for removal, but who are not chargeable with actual hostility or crime against public safety, must not only be provided with the opportunity to depart on their own, but also with the opportunity to get their affairs in order, i.e., to deal with whatever property they may own in the U.S. There will, again, be some more nuance here that we’ll revisit, but the text then continues to clarify what this opportunity entails:

“…the full time which is, or shall be stipulated by any treaty, where any shall have been between the United States, and the hostile nation or government, of which they shall be natives, citizens, denizens or subjects: and where no such treaty shall have existed, the President of the United States may ascertain and declare such reasonable time as may be consistent with the public safety, and according to the dictates of humanity and national hospitality.”

For the sake of argument, let’s just go with the least charitable option, that is, that there is not a treaty with Venezuela that provides for certain additional rights. The alien would still have the “full time” which shall be “reasonab[ly]” “consistent with public safety, and according to the dictates of humanity and national hospitality.”
This means that the time provided to non-hostile, non-criminal individuals, must at minimum, be reasonably sufficient for them to take care of their affairs, specifically their property, consistent with public safety, i.e., such that they do not post a threat to the public, in a humane and hospitable manner.

So before we even get into the deeper legal questions, the plain text already makes one thing clear:

No one can be forcibly removed under this statute unless they
(1) are male and over the age of 14,
(2) aren’t permitted to reside here,
(3) are given the chance to leave voluntarily, and
(4) if peaceful, are also granted humane and reasonable time to manage their affairs.

Now, let’s talk nuance—because once you start asking how these determinations are made, it becomes even more obvious that every path leads to due process:

1. If the Executive alleges that an alien does not have the right to reside in the United States, in order to meet that critical removal requirement, then—under the Fifth Amendment—the individual must be given the opportunity to contest that allegation.
This isn’t a matter of discretion; it’s a constitutional guarantee. The Supreme Court has repeatedly affirmed that the Fifth Amendment applies to all “persons” within the U.S., regardless of citizenship or immigration status (e.g. Zadvydas v. Davis (2001), Hamdi v. Rumsfeld (2004)). That includes the right to know the basis for one’s removal, the right to review the evidence, and the right to respond.
Even if the Executive tries to restrict this process to a non-Article III forum—say, through immigration courts under the Department of Justice—it still must meet basic due process standards: notice, an opportunity to be heard, and a neutral adjudicator. That’s not optional. That’s bedrock law.

2. Next, because the statute requires that the alien be given an opportunity to depart on their own, the natural question becomes: what counts as an “opportunity” to depart?
Suppose the Executive were to declare that once notified, an alien has 15 minutes to cross the border or be subject to forced removal. Is that really an “opportunity”? Of course not—but more importantly, it’s not the President’s call to make in a vacuum.
Whether 15 minutes—or 24 hours, or any other arbitrary window—qualifies as a lawful opportunity to depart is a question that would necessarily be subject to judicial review. Why? Because that opportunity is a statutory right granted by the Act itself. And if the Executive is alleged to have violated it, the individual is entitled to challenge that violation in court.
So once again, we land right back in due process territory—with a judge, notice, a right to be heard, and a neutral decision-maker. It doesn’t matter how fast the President wants to move. The law requires that removal be the last step, not the first, and that every person is given a real chance to contest the process.

3. Finally, the Act includes a further condition under which additional rights must be granted: if the alien is peaceful and poses no threat to public safety, they must also be given time to get their affairs in order.
This is not a suggestion—it’s an explicit statutory guarantee. The law states that such individuals “shall be allowed” time to recover, dispose, and remove their goods and effects before departing. That’s not just about fairness—it’s about lawful treatment under the terms of the Act itself.
So what happens if the Executive tries to skip this step? What if they grant an alien the opportunity to leave voluntarily but deny them any chance to manage their affairs?
At that point, the only way to justify that denial would be to claim that the person is “chargeable with actual hostility” or has committed “other crimes against the public safety.” But that’s not a self-proving label. It’s an allegation—and like all allegations that result in the denial of rights, it must be subject to judicial review.
So we find ourselves back in due-process territory yet again. The moment the Executive tries to justify removing someone without giving them the full humane window required by law, they must provide proof. And that proof must be reviewable, challengeable, and decided by a neutral forum.

So, all this to say: while Section 1 begins with the Executive, it cannot end there.

The statute itself builds in multiple checkpoints—each one triggering rights that place key parts of the process outside the President’s unilateral control. Whether it’s determining who has the right to reside, what constitutes a fair opportunity to depart, or whether someone is actually hostile or peaceful, each question opens the door to judicial review and due process.

The Alien Enemies Act simply does not permit the Executive to snap their fingers and have people dragged out of the country. Even under the broadest reading, the law imposes procedural obligations that force the process out of the White House and into the courts.

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Step 3: Bonus Violation — Removing an alien is not the same as shipping them for indefinite imprisonment in a torture prison outside of U.S. Jurisdiction

Let’s be clear: even if Trump had followed the statute to the letter—which he hasn’t—nothing in the Alien Enemies Act authorizes indefinite detention, let alone extrajudicial rendition to a foreign torture facility operating outside the protection of U.S. law.

The Act repeatedly uses the word “removal”—and in every legal and historical context, that means expulsion from the United States. It doesn’t mean indefinite imprisonment. It doesn’t mean secretive transport to a foreign dictatorship’s prison. It doesn’t mean sending people into a legal black hole to be held indefinitely without trial.

And yet, that’s exactly what’s happening.

Trump is rendering detainees to El Salvador’s CECOT prison, a facility widely condemned for human rights abuses, in coordination with a foreign regime that operates with no regard for due process or international law. That’s not immigration enforcement. That’s state-sponsored kidnapping.

Even during declared wars with recognized enemy states, the Alien Enemies Act has never been used to justify this kind of offshore imprisonment. The law authorizes:

Restraint (under conditions defined by regulation),
Security (meaning lawful confinement with oversight),
Or removal—i.e., legal deportation.

Nothing in the text permits what Trump is doing now: targeting individuals on U.S. soil, denying them a hearing, and forcibly transferring them to a foreign authoritarian prison outside the reach of our courts.

That is not “removal.” That is unlawful, extraterritorial detention—done deliberately to escape judicial scrutiny.
Now, someone might try to get clever and claim this isn’t “removal” at all—it’s just “restraint,” which the Act also permits. But if you want to argue that shipping people to CECOT, El Salvador’s torture prison, is a form of “restraint” under U.S. law?

Then congratulations—you’ve just admitted that CECOT is operating under U.S. jurisdiction.

And that’s a door they do not want to open.

Because if CECOT is a U.S.-directed or U.S.-controlled facility in any legal sense—if those detainees remain under American restraint, as opposed to being removed—then Trump and every official involved are now on the hook for:

The overcrowding of cells where detainees are trapped like animals,
The denial of access to books, sunlight, legal counsel, etc.,
The routine torture and humiliation,
The deaths—because once you go in, you don’t come out.

Under international law, and potentially U.S. law as well, this would make Trump directly liable for human rights violations. This isn’t a semantic loophole. It’s a trap of their own making. They cannot have it both ways:

If this is “restraint,” then the United States is responsible for what happens in that prison.
If it’s not, then it’s removal—and it still violates the statute and the Constitution.

Either way, it’s illegal. Either way, it’s fascist. And either way, it’s happening under Trump.

This Is Not a Debate About Statutes. It's a Fight Over Who We Are.

This isn’t about old, obscure legal clauses. It’s about whether the rule of law means anything when fascism knocks with a flag in its hand and a prison on the other end of the flight manifest.

The Alien Enemies Act isn’t the problem. Trump is.
He’s not misinterpreting the law—he’s breaking it.
He’s not protecting the country—he’s testing how far he can go before we stop him.

So we either stop him now—with facts, with law, and with nonviolent resistance:
In courtrooms.
In legislatures.
Through peaceful protest.
At the ballot box.
And in everyday conversations—online and off—where the rule of law must be defended just as fiercely as in any courtroom.

Or we let the precedent sink in that constitutional rights end when the President says, “they don’t apply to you.”

Because make no mistake:
If you cheer while they come for someone else, no one will be left to hear you scream when they come for you.

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