Trump Prepares to Use 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 Alien Enemies Act [AEA] to remove all known or suspected Gang Members, drug dealers, or Cartel Members from the U.S.” Stef Kight reported for Axios later that summer that Trump “wants to use the often-overlooked law to quickly remove smugglers and migrant criminals — without having to go through legal steps in ICE’s deportation process”.

In October 2023, in response to Trump’s reported plans, I asked the question of whether the AEA can indeed be used to detain and remove foreign gang and cartel members. I fretted that it would be an uphill climb in federal court, that the AEA seemingly does not apply to gangs, cartels, and criminals. However, I posited that in certain scenarios, a powerful argument could in fact be made that cartel members do qualify for summary detention and removal under the AEA, those scenarios being where cartels have become entwined with “mafia states”.

On Monday, President Trump issued an executive order — “Designating Cartels and Other Organizations as Foreign Terrorist Organizations and Specially Designated Global Terrorists” — indicating that he seemingly will focus on using the AEA to combat international cartels that have become entwined with “mafia states”. This is a shrewd move, using the extremely powerful tool of the AEA where he is most likely to prevail at the Supreme Court, at least as an opening gambit.

The Alien Enemies Act

The AEA 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” of 1798, the AEA received wide bipartisan support, including that of Thomas Jefferson and James Madison. The AEA 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).

As I mentioned, I fretted over whether the AEA could be used against cartel and gang members. After all, the act was conceived of as a response to a traditional conflict 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?

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, the Trump administration can make a powerful argument that criminal cartels and other organized criminal enterprises that have become entwined with “mafia states” should 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 foreign 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.

President Trump’s Executive Order

One of President Trump’s first executive orders is titled “Designating Cartels and Other Organizations as Foreign Terrorist Organizations and Specially Designated Global Terrorists”, pursuant to which certain international cartels and other criminal organizations can be designated as foreign terrorist organizations or specially designated global terrorists under processes already contained in federal law. But 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 Alien Enemies Act … 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 starkly and accurately states that:

• The Cartels have engaged in a campaign of violence and terror throughout the Western Hemisphere that has not only destabilized countries with significant importance for our national interests but also flooded the [U.S.] with deadly drugs, violent criminals, and vicious gangs.

• The Cartels functionally control, through a campaign of assassination, terror, rape, and brute force nearly all illegal traffic across the southern border of the [U.S.]

• Other transnational organizations, such as Tren de Aragua (TdA) and La Mara Salvatrucha (MS-13) pose similar threats to the [U.S.]. Their campaigns of violence and terror in the [U.S.] and internationally are extraordinarily violent, vicious, and similarly threaten the stability of the international order in the Western Hemisphere.

The EO then lays out the case for using the AEA against these transnational criminal cartels and gangs, stating that “[i]n certain portions of Mexico, they function as quasi-governmental entities, controlling nearly all aspects of society”, that they “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”.

Again, this is a shrewd move by President Trump, making a test case of the AEA where he is most likely to prevail at the Supreme Court.