Trump used the Alien Enemies Act to deport migrants. Was it legal?

Summary

Post Reports Summary: “Trump used the Alien Enemies Act to Deport Migrants. Was it Legal?”

Podcast Information

• Title: Post Reports
• Host/Author: The Washington Post
• Episode Title: Trump used the Alien Enemies Act to Deport Migrants. Was it Legal?
• Release Date: March 17, 2025
• Hosts: Martine Powers and Elahe Izadi

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Introduction

In the March 17, 2025 episode of Post Reports, host Colby Ikowicz delves into the controversial invocation of the Alien Enemies Act by former President Donald Trump to expedite the deportation of Venezuelan migrants. Alongside immigration reporter Marianne Levine, Ikowicz unpacks the legal, political, and humanitarian implications of this unprecedented move.

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Overview of Events

Marianne Levine provides a chronological account of the unfolding events:

• Early Planning and Anticipation: Trump had previously hinted at using the Alien Enemies Act during his campaign and inauguration, preparing immigrant advocates for potential mass deportations.

• Legal Challenge: On Saturday morning (Timestamp [01:24]), the ACLU and Democracy Forward Foundation filed a lawsuit aiming to block the administration's use of the act preemptively.

• Proclamation and Public Announcement: The White House publicly announced Trump's invocation of the law on Saturday, although the proclamation was signed in secret the previous Friday night ([01:24]).

• Judicial Response: A U.S. District Judge in Washington, D.C., swiftly intervened by blocking the deportation of five migrants and ordering the cessation of deportations under the act ([03:00]).

• Mass Deportations Ensue: Despite the legal hurdles, the administration deported 137 migrants to El Salvador, citing connections to the gang Trende Aragua ([03:04]).

Key Quote:

“We saw that the White House has actually posted publicly that Trump has already invoked the law and that he had invoked it for Friday night and had signed it Friday night, but the White House did not officially or publicly announce it until Saturday.” — Marianne Levine ([01:24])

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Understanding the Alien Enemies Act

Ikowicz prompts an explanation of the Alien Enemies Act:

Marianne Levine explains that the Act, established in 1798, grants the President expansive wartime powers to deport individuals from nations deemed "enemy" states without due process. Notably, its last significant use was during World War II.

Key Points:

• Historical Context: Last invoked in WWII, primarily used to intern Japanese Americans.
• Current Application: Intended by Trump to accelerate deportations by bypassing standard legal procedures.
• Controversial Grounds: The U.S. is not officially at war with Venezuela, raising legal questions about the Act's applicability.

Key Quote:

“The Alien Enemies act is a very old, centuries old law that has not been invoked since World War II... the United States can say, these migrants are from a country with which we're at war, they can be deported quickly, and they don't need to go through the typical legal process that would normally take place.” — Marianne Levine ([03:21])

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Justification and Legal Challenges

Trump’s Justification:

• National Security Threat: President Trump argues that the gang Trende Aragua poses a significant security threat, thereby justifying the use of wartime powers.
• Circumventing Congress: Critics claim this move bypasses Congressional authority and relies on archaic laws to fulfill campaign promises of mass deportations.

Judicial Objections:

• Necessity of War Declaration: Legal experts argue that invoking the Alien Enemies Act requires an official war declaration, typically a Congressional act—a condition unmet in this scenario.

Key Quote:

“A lot of legal experts would say that in order for this law really to be invoked, the United States has to be at war, which historically has gone through Congress.” — Marianne Levine ([04:55])

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Details on Trende Aragua and Deportees

Trende Aragua Defined:

• Nature of the Gang: A transnational criminal organization allegedly linked to violent crimes.
• Administration’s Portrayal vs. Reality: While the Trump administration emphasizes their significant threat to U.S. security, experts dispute the extent of this threat.

Deportation Specifics:

• Total Deported: 137 migrants sent to El Salvador ([03:04]).
• Destination Arrangement: El Salvador's President Bukele agreed to detain these individuals in a mega prison in exchange for approximately $6 million from the U.S. ([06:44], [07:16]).

Legal Status of Deportees:

• Verification Issues: There is no independent confirmation that deported individuals are actual members of Trende Aragua ([06:28]).

Key Quote:

“The United States has agreed to pay El Salvador Approximately $6 million to detain these alleged gang members... El Salvador has offered to be a partner to the United States when it comes to detention and when it comes to assisting with the mass deportation operation.” — Marianne Levine ([07:16])

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International and Domestic Reactions

Venezuelan Government:

• Strong Condemnation: The Venezuelan government likened the actions to establishing concentration camps, vehemently opposing the deportations ([07:45], [07:55]).

U.S. Legal Opposition:

• Court Orders: A judge swiftly blocked deportations and ordered the return of migrants on deportation flights ([08:10]).
• Immediate Judicial Actions: The speed of the U.S. District Judge's response indicated significant legal pushback against the administration's actions ([08:19]).

Key Quote:

“The Venezuelan government has condemned the actions of the administration and essentially comparing it to putting people into concentration camps.” — Marianne Levine ([07:55])

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Legal Battle and Current Status

Court Proceedings:

• Initial Lawsuit: Filed by ACLU and Democracy Forward Foundation on Saturday morning ([09:28]).
• Judge’s Orders: Preemptively blocked deportations of five migrants and ordered all flights carrying deportees to return ([09:28], [11:05]).

Administration’s Response:

• Defiance Claims: The Trump administration asserts that flights departing before the judge's order were not bound by the injunction, arguing lack of jurisdiction over flights already in international airspace ([11:26], [12:17]).
• Ongoing Legal Strategy: The administration is prepared to escalate the case to the Supreme Court, maintaining that the President holds broad executive authority ([13:12]).

Key Quote:

“The White House is very prepared to fight this in court. A White House official told one of my colleagues that if this goes up to the Supreme Court, they're ready to fight it and that they're arguing that the president does have this broad executive authority to do this.” — Marianne Levine ([12:32])

Migration Flight Details:

• Flight Patterns: Three flights were identified—two departing before the judge’s order and one after. The administration claims only the pre-order flights are exempt, though the third flight's legality remains contested ([10:10], [11:05], [12:17]).

Future Hearings:

• Upcoming Legal Developments: Another hearing is scheduled for 5 p.m. the same day, with the U.S. Court of Appeals for the D.C. Circuit set to review the administration’s request to stay the judge's order ([13:24]).

Key Quote:

“The judge issued this order that blocks the use of the Alien Enemies act to deport people broadly and orders the return of any migrants that have been put on these flights back to the United States.” — Marianne Levine ([11:05])

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Implications for Deportees

Current Detention Status:

• Mega Prison in El Salvador: Migrants are held without due process, raising questions about their legal status and future.

Uncertain Outcomes:

• Potential Repatriation: If courts rule the deportations illegal, it's unclear whether El Salvador will comply with returning the migrants.
• Humanitarian Concerns: The unprecedented nature of this action leaves many uncertainties regarding the treatment and rights of the deported individuals ([13:24], [13:52]).

Key Quote:

“It's all very unprecedented. We don't know because it's all very unprecedented.” — Marianne Levine ([13:52])

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Conclusion

The Trump administration's use of the Alien Enemies Act to deport Venezuelan migrants has ignited a complex legal and ethical debate. With significant pushback from both domestic courts and the Venezuelan government, the situation underscores the tensions between executive authority and legal safeguards in immigration policy. As the legal battle continues, the fate of the deported migrants and the future applicability of wartime powers in peacetime remain uncertain.

Notable Production Credits:

• Produced by: Rennie Svirnovsky and Ted Muldoon
• Mixed by: Ted Muldoon
• Edited by: Rena Flores with help from Lucy Perkins
• Acknowledgements: Jenna Johnson

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Stay Informed: For the latest updates on this developing story and more, tune into future episodes of Post Reports and check out The Washington Post’s comprehensive news coverage.

Transcript

[Colby Ikowicz]

On Friday, President Donald Trump signed a proclamation in secret. In it, he invoked an obscure law, the Alien enemies Act of 1798. It's a sprawling wartime power that hasn't been used since World War II. Then, over the weekend, the administration used this power to deport more than 100 Venezuelan migrants. The White House claimed they belonged to the gang Trende Aragua. These migrants received no immigration hearing and no due process. They're now stranded in a mega prison in El Salvador. From the newsroom of the Washington Post, this is Post Reports. I'm Colby IKOWICZ. It's Monday, March 17th. Today, the alien Enemies Act. I'm sitting down with immigration reporter Marianne Levine to talk about how the Trump administration used this wartime power to deport migrants and how they apparently defied a judge to do it. Marianne, I know you were really busy over the weekend. Could you just start by giving us a play by play of all the events that unfolded?

[Marianne Levine]

So we had been hearing for, for some time that President Trump planned to invoke the Alien Enemies act to speed up deportations of migrants. And Trump had talked about this law on the campaign trail. He had talked about it during his inaugural address. So this was something that many immigrant advocates were ready for and were anticipating. So we see that Saturday morning, the ACLU and Democracy Forward foundation file the lawsuit against the Trump administration, essentially trying to preemptively stop the administration from using this wartime law. And as the day unfolds, we then see that the White House has actually posted publicly that Trump has already invoked the law and that he had invoked it for Friday night and had signed it Friday night, but the White House did not officially or publicly announce it until Saturday. So all this unfolds. The U.S. district Judge in Washington, D.C. basically preemptively blocks the administration from deporting the five migrants for the plaintiffs in the case from being deported under the Alien Enemies Act. They were not on these flights. And this all unfolds Saturday afternoon, and the judge schedules a hearing immediately. At that hearing, the judge basically orders the administration to stop the invocation of this law to speed up mass deportations, and orders them to return any migrants who have been in flight back to the United States.

[Colby Ikowicz]

Any migrants that were in flight under this law?

[Marianne Levine]

Correct.

[Colby Ikowicz]

Okay. And how many was that? The.

[Marianne Levine]

The administration had deported 137 migrants under this law to El Salvador.

[Colby Ikowicz]

And so he used the Alien Enemies act as the legal justification. Can you kind of explain what that act is? What does it do? What does it allow the President to do?

[Marianne Levine]

Yeah. So the Alien Enemies act is a very old, centuries old law that has not been invoked since World War II. But basically for the purposes of President Trump's immigration policy, this law essentially being used to deport migrants much faster. And the reason for why that process is much quicker is because this law essentially eliminates the right to due process, and it eliminates the right to a court hearing. So the United States can say, these migrants are from a country with which we're at war, they can be deported quickly, and they don't need to go through the typical legal process that would normally take place. Now, the caveat here is the United States is not at war. And that's something that legal experts quickly pointed out.

[Colby Ikowicz]

Yeah, I wanted to ask that because. Because the last time we used this was World War II, when we were actually at war, and it laid the groundwork that allowed US to intern 110,000 Japanese Americans. But to your point, we're not at war with Venezuela. So how does Trump justify, or does he claim that we're at war with Venezuela? What is he saying?

[Marianne Levine]

He claims that the gang is a national security threat and that basically this wartime law allows him to use whatever measures he can to expel alleged gang members from Trend Aragua, but it doesn't.

[Colby Ikowicz]

Require the president to declare a war or to say that we're at war specifically.

[Marianne Levine]

Well, that's the question. Right. And I think a lot of legal experts would say that in order for this law really to be invoked, the United States has to be at war, which historically has gone through Congress.

[Colby Ikowicz]

Right.

[Marianne Levine]

And so what critics will say is that this is another example of the Trump administration basically trying to circumvent Congress and trying to reach back to some of these arcane laws to try to fulfill as campaign promise of mass deportations.

[Colby Ikowicz]

And so Trump is claiming that these migrants that were deported are part of this gang. Trende Aragua. What is this gang? And are the alleged members the only people that were deported over the weekend?

[Marianne Levine]

Trunde Aragua is a transnational gang, and basically the administration has repeatedly sought to portray Trend Aragua as a. As a significant threat to the United States. Trend Day. This has been something that he's talked about a lot. Or is your law enforcement and law enforcement all over the world, they know them all over the world. They're a savage gang, one of the worst in the world. A lot of experts say that the gang does not pose this significant national security threat to the United States in the way that President Trump has sought to portray them, but they've Essentially tried to link the gang members to these terrible tragedies that have occurred where an undocumented immigrant commits a murder or crime. And that's been the context with which the administration has talked about the threat of trend. Aragua, specifically. There were also other alleged gang members that the administration said were also on these flights to El Salvador. When Salvador and President Bukele talked about the migrants who had arrived, he also said that there were more than 20 members of Ms. 13, which is another gang. Which is another gang. Correct.

[Colby Ikowicz]

Are the people that were deported over the weekend, are they definitely members of this gang?

[Marianne Levine]

So we haven't independently verified that.

[Colby Ikowicz]

Huh. So some of the people that were deported over the weekend are Venezuelan nationals. Why then were they sent to El Salvador?

[Marianne Levine]

So President Bukele over the weekend and administration officials confirmed that the United States is actually paying El Salvador to hold these alleged gang members, to hold them in this mega prison. So basically, El Salvador has offered to be a partner to the United States when it comes to detention and when it comes to assisting with the mass deportation operation, that's a big reason for why they were sent there.

[Colby Ikowicz]

So this is a financial boon for El Salvador. They agree to take these prisoners in exchange for money from the United States. Is that how this arrangement is working?

[Marianne Levine]

So our understanding as of today is that the United States has agreed to pay EL SALVADOR Approximately $6 million to detain these alleged gang members. But it's one way in which the Salvadoran government has sought to improve its relationship with the United States. We saw Secretary of State Marco Rubio call Bukele a. And so it's also, I think, a strategic way for El Salvador to get in the United States good graces.

[Colby Ikowicz]

I saw in your story over the weekend, Marianne, that there was a really powerful quote from the Venezuelan government opposing this action. Can you kind of walk us through what their response has been?

[Marianne Levine]

The Venezuelan government has condemned the actions of the administration and essentially comparing it to putting people into concentration camps. And so we're seeing a really, really vehement pushback from Venezuelan officials for what the administration has done.

[Colby Ikowicz]

So we are seeing a lot of pushback. You're seeing it from the Venezuela government. You're also seeing it in the United States, which seems like it's going to be setting up a big legal battle here.

[Marianne Levine]

Yeah, I mean, I think that it's very telling that the judge blocked the order so quickly. And I think the administration's actions are also very telling that they themselves had anticipated a legal battle. I mean, the fact that President Trump did not publicize the fact that that he had signed the Alien Enemies act invocation on Friday night. And we've been told that the administration is very ready to fight this out in court with the ACLU and with the groups that are challenging this invocation.

[Colby Ikowicz]

After the break, we ask Marianne, were these deportations actually legal? We'll be right back. So as these deportations were happening over the weekend, there was this back and forth over the legality of it. It was going on between a US District judge and the Justice Department. Can you walk me through that back and forth legal arguments?

[Marianne Levine]

Yeah. So basically what happened was the ACLU and Democracy Forward foundation put forward this lawsuit Saturday morning challenging the legality of invoking the Alien Enemies Act. And they did this on behalf of five Venezuelan migrants. A couple hours later, the judge immediately reacts and preliminarily blocks the deportation of these five individuals under the Alien Enemies Act. Later, the judge holds a hearing and essentially issues this order that blocks the use of the Alien Enemies act to deport people broadly and orders the return of flights to the United States that may have already been en route.

[Colby Ikowicz]

And there were flights en route.

[Marianne Levine]

That's our understanding. So we looked at the flight data. Our colleague Joyce Lee did an amazing job going through all the flight data. And it looked like as this whole process was taking place around 5 o'clock, there were two flights that took off and headed to Texas, stopped in Honduras, and then would later arrive in El Salvador with some of the migrants who were alleged gang members. Now, we saw, based on the flight data that Joyce put together, that even after the judge's order, another flight took off from Texas and was headed to el Salvador around 7:36pm that was a third flight.

[Colby Ikowicz]

So just so I understand the judge blocked these five migrants from being deported, but also said if there were any deportations happening, they needed to turn around and bring them back.

[Marianne Levine]

So basically it was a two part process. So there is the initial blocking before the hearing even took place. And then the judge issued the broader order which essentially blocked the administration from using this law for mass deportations. And the judge ordered that any migrants that had been put on these flights, that the flights turn around and come back.

[Colby Ikowicz]

But they did not turn the flights around.

[Marianne Levine]

The flights did not turn around. No.

[Colby Ikowicz]

I know that you and our colleagues are going to continue reporting this out over the days to come, but it certainly sounds like the administration just openly defied a court order.

[Marianne Levine]

They would push back on that and they would say they did not defy a court order because they're saying that the flights, that two of the flights at least took off before the order had been officially invoked. And we can see that there were two flights that left Texas, one at 5:26pm and another at 5:45pm and that was before the order completely blocking the use of the law and requesting that people return was invoked. So they're saying that they were already over international waters at that point, but it doesn't address the third flight that left after the order was invoked.

[Colby Ikowicz]

Is it also true that if it was in fact over international waters, that then the judge has no jurisdiction, like it's still a US Plane, it's still a US Taxpayer paying to send these people to El Salvador. Is that an actual sound legal argument from the Trump administration?

[Marianne Levine]

So I think we're going to have to see, and I think we're going to see this continue to play out. It's been interesting to read the latest filings from the aclu, and they're pointing to the flights and they're pointing to some of the flight patterns as an argument against the government's case. I mean, we haven't seen the use of the Alien Enemies act since World War II and never in this kind of context. So I think there's a lot of broader legal questions that we don't frankly know the answers to. But what we do know is that the White House is very prepared to fight this in court. A White House official told one of my colleagues that if this goes up to the Supreme Court, they're ready to fight it and that they're arguing that the president does have this broad executive authority to do this.

[Colby Ikowicz]

And so you and I are talking right now on Monday afternoon. This is a fast moving story, but where has the case landed right this moment? And what are you going to be watching for over the next hours and days?

[Marianne Levine]

So as things stand, we're set to have another hearing today at 5pm with the U.S. district Judge. And the U.S. court of Appeals for the D.C. circuit is also going to hear the Trump administration's request to stay the judge's orders blocking the invocation of this law and its application to Venezuelans.

[Colby Ikowicz]

And so these migrants are now detained in El Salvador. What happens to them now?

[Marianne Levine]

I mean, that's a great question. Right now they're in a mega prison. There is a question about what happens with the migrants who are there, especially amid the judge's orders for them to come back. And I think we don't know the answers to those questions. Do they stay in this mega prison if this use of the act is overturned. We don't know. And we know also very little about the identities of the individuals who were taken to the mega prison. And so we have a lot of questions about, about what the conditions are going to be and also what happens if the courts ultimately rule that this was illegal. What does the administration do? Does the Salvadoran government cooperate in bringing these people back to the United States? It's really hard to know what that's going to look like. And I think we don't know because it's all very unprecedented.

[Colby Ikowicz]

Marianne, thank you so much.

[Marianne Levine]

Thanks for having me.

[Colby Ikowicz]

Marianne Levine covers immigration for the Post. On Monday afternoon, the legal back and forth continued. In a court filing, the administration made a claim about that third flight Maryanne mentioned earlier, the one that left Texas after a judge ordered the administration to stop deportations using wartime powers. Trump's lawyers now say that the flight in question didn't actually have any migrants on it who had been expelled under the Alien Enemies Act. And so they say that when it took off is irrelevant. The Post has not been able to independently verify whether the Alien Enemies act applied to those deportees on that third flight. That's it for Post reports. Thanks for listening. If you're looking for the latest updates on the big news of the day, check out our morning News briefing. The Seven we bring you seven stories you need to know about every Weekday morning by 7am you can listen to it wherever you get your podcasts. Today's show was produced by Rennie Svirnovsky and Ted Muldoon, who also mixed the show. It was edited by Rena Flores with help from Lucy Perkins. Thanks to Jenna Johnson. I'm Cole Bjkowicz. We'll be back tomorrow with more stories from the Washington Post.