Trump Prepares to Use the Alien Enemies Act

In January, I wrote that indications pointed to President Trump “seemingly … focus[ing] on using the AEA [Alien Enemies Act] to combat international cartels that have become entwined with ‘mafia states’”. Well, one February executive order (EO) and one March White House fact sheet later, indications point to Mexico as a “mafia state”.

The Alien Enemies Act

In June 2023, Team Trump posted on X that “President Trump’s Day One Agenda to Secure Our Border and Reclaim National Sovereignty” would include “Invok[ing] the [AEA] to remove all known or suspected Gang Members, drug dealers, or Cartel Members from the U.S.”

What is the AEA? It was enacted in 1798 in reaction to a feared invasion by France, then in the throes of the French Revolution. Unlike the other “Alien and Sedition Acts”, the AEA received wide bipartisan support, including from Thomas Jefferson and James Madison. It has been ruled constitutional by the Supreme Court and is still good law, providing that:

Whenever there is a declared war between the [U.S.] and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the [U.S.] by any foreign nation or government … all natives, citizens, denizens, or subjects of the hostile nation or government [at least 14 years old and not having become naturalized U.S. citizens] … shall be liable to be apprehended, restrained, secured, and removed as alien enemies.

The Immigration and Nationality Act’s statutory procedures and rights accorded aliens do not apply to AEA detentions and removals, employed during the War of 1812 and during World Wars I and II (when the U.S. detained thousands of alien enemies and removed over a thousand).

I have fretted over whether the AEA can be used against cartel and gang members. It was conceived as a response to traditional conflicts between nations and can only be triggered by a declared war, or an invasion or predatory incursion by a foreign nation or government. Can the nefarious activities of cartels within the United States qualify as “invasions” or “predatory incursions”? If so, can these activities be considered as carried out by foreign nations or governments? Seemingly, an administration would have an uphill climb in federal court.

However, as I have written, Moisés Naím has documented the rise of “mafia states”, nations in which “criminals have penetrated governments to an unprecedented degree” and “rather than stamping out powerful gangs”, the “governments have instead taken over their illegal operations” with “government officials enrich[ing] themselves … while exploiting the money, muscle, political influence, and global connections of criminal syndicates to cement and expand their own power”. This has “blurr[ed] the conceptual line between states and nonstate actors”.

Thus, I have argued that the Trump administration can make a powerful argument that criminal cartels and other organized criminal enterprises that have become entwined with “mafia states” can reasonably be considered parts of the governments of such states. Consequently, any invasions or predatory incursions the cartels perpetrate, attempt, or threaten can be considered actions of these governments, triggering the AEA. Whether federal courts will ultimately be persuaded by such arguments is an open question. But, if they are, the AEA would authorize the summary detention and removal of members of the relevant cartels and gangs, so long as they are natives, citizens, denizens, or subjects of the relevant nation.

Mexico and the Alien Enemies Act

President Trump has seemingly been building the case that Mexico should be considered a mafia state, and that acts of the Mexican drug cartels in the United States should be considered acts of the Mexican government itself.

The January Executive Order

On January 20, President Trump signed “Designating Cartels and Other Organizations as Foreign Terrorist Organizations and Specially Designated Global Terrorists”, an EO pursuant to which certain international cartels and other criminal organizations can be designated as foreign terrorist organizations or specially designated global terrorists under current federal law. Additionally:

Within 14 days of the date of this order, the Attorney General and the Secretary of Homeland Security shall take all appropriate action, in consultation with the Secretary of State, to make operational preparations regarding the implementation of any decision I make to invoke the [AEA] … in relation to the existence of any qualifying invasion or predatory incursion against the territory of the [U.S.] by a qualifying actor, and to prepare such facilities as necessary to expedite the removal of those who may be designated under this order.

The EO seemed to lay out a case for using the AEA against these transnational criminal cartels and gangs, stating that “international cartels constitute a national-security threat beyond that posed by traditional organized crime, with activities encompassing … convergence between themselves and a range of extra-hemispheric actors [including] antagonistic foreign governments … [and] infiltration into foreign governments across the Western Hemisphere” (emphasis added). While these statements did not mention Mexico specifically, the EO did state that “[i]n certain portions of Mexico, the [cartels] function as quasi-governmental entities, controlling nearly all aspects of society” (emphasis added).

The February Executive Order

Then, on February 1, President Trump issued “Imposing Duties to Address the Situation at Our Southern Border”, an EO providing that:

• The Mexican [drug trafficking organizations] have an intolerable alliance with the government of Mexico. This alliance endangers the national security of the [U.S.], and we must eradicate the influence of these dangerous cartels from the bilateral environment. The government of Mexico has afforded safe havens for the cartels to engage in the manufacturing and transportation of illicit drugs, which collectively have led to the overdose deaths of hundreds of thousands of American victims. [Emphasis added.]

• I previously declared a national emergency with respect to the grave threat to the [U.S.] posed by the influx of illegal aliens and illicit drugs into the [U.S.] in Proclamation 10886. Pursuant to the NEA [National Emergencies Act], I hereby expand the scope of the national emergency declared in that proclamation to cover the failure of Mexico to arrest, seize, detain, or otherwise intercept [drug trafficking organizations], other drug and human traffickers, criminals at large, and illicit drugs. In addition, this failure to act on the part of the government of Mexico constitutes an unusual and extraordinary threat, which has its source in substantial part outside the [U.S.], to the national security, foreign policy, and economy of the [U.S.]. I hereby declare and reiterate a national emergency under the NEA and IEEPA [the International Emergency Economic Powers Act] to deal with that threat. [Emphasis added.]

The March Fact Sheet

Then, in its March 3 release, “Fact Sheet: President Donald J. Trump Proceeds with Tariffs on Imports from Canada and Mexico”, the White House stated that:

Mexican drug trafficking organizations, the world’s leading fentanyl traffickers, operate unhindered due to an intolerable relationship with the government of Mexico. [Emphasis added throughout.]

• The government of Mexico has afforded safe havens for the cartels to engage in the manufacturing and transportation of dangerous narcotics, which collectively have led to the overdose deaths of hundreds of thousands of American victims.
• Mexican drug cartels are known for extreme brutality, corruption, and control over entire regions of Mexico.
• The Sinaloa and Jalisco cartels manufacture fentanyl in clandestine labs they oversee in Mexico, in both powder form and pressed into fake pills, and traffic it into the [U.S.] through the many entry points they control. 97% of seizures occur at the U.S.-Mexico border.
• Cartel violence, including armed drones and roadside IEDs, are coming in closer and closer proximity to the U.S.-Mexico border as cartels are more actively targeting one another as well as Mexican military and law enforcement personnel.
• This alliance with the Mexican government endangers the national security of the [U.S.], and we must eradicate the influence of these dangerous cartels.
• [Mexico’s and Canada’s] failure to arrest traffickers, seize drugs, or coordinate with U.S. law enforcement constitutes an unusual and extraordinary threat to America’s security — demanding IEEPA action to force accountability and protect American lives.

Is this all a prelude to use of the AEA against Mexican nationals in general, or Mexican nationals who are members of Mexican cartels in particular? Is it rather designed to increase pressure on the Mexican government to more actively combat the cartels? We shall see.