Trump and the Alien Enemies Act of 1798: The Deportation of Venezuelan Gang Members as “Irregular Warfare”.
by Andrea Molle.
The Alien Enemies Act of 1798 is a federal law that grants the U.S. president the authority to detain or deport non-citizens from nations deemed hostile during times of war. Enacted on July 6, 1798, as part of the broader Alien and Sedition Acts, its primary purpose was to safeguard national security amid potential conflicts.
In the late 18th century, tensions between the United States and France escalated, leading to fears of espionage and internal subversion. To address these concerns, the Federalist-controlled Congress passed four laws collectively known as the Alien and Sedition Acts. These included the Naturalization Act, which in the past extended the residency requirement for U.S. citizenship from five to fourteen years; the Alien Friends Act, which authorized the president to deport any non-citizen deemed dangerous to national security; the Alien Enemies Act, which empowered the president to detain or deport male citizens of a hostile nation, aged fourteen and above, during times of war; and the Sedition Act, which made it a crime to publish “false, scandalous, and malicious writing” against the government or its officials. Unlike the other three acts, which were either repealed or expired by 1802, the Alien Enemies Act remains in effect today, albeit in a modified form. Its enduring presence in U.S. law continues to evoke discussions about civil liberties and the balance between national security and individual rights.
Throughout U.S. history, the Alien Enemies Act has only been invoked during significant conflicts. During the War of 1812, it was applied to British nationals residing in the United States. In World War I, it targeted citizens of Germany and its allies. In World War II, it was used to justify the internment of Japanese, German, and Italian nationals, as well as Japanese American citizens, marking one of the most controversial applications of the act. In each instance, the act facilitated the detention, relocation, or deportation of individuals based on their nationality during wartime.
In March 2025, President Donald Trump invoked the Alien Enemies Act to expedite the deportation of Venezuelan migrants suspected of gang affiliations, specifically targeting the Tren de Aragua gang. This marked an unprecedented peacetime application of the act, as the United States is not officially at war with Venezuela. While not able to stop the beginning of the deportations, a federal judge issued a fourteen-day restraining order, opening to legal debates about the scope and applicability of the act in contemporary contexts.
The invocation of the Alien Enemies Act of 1798 to deport Venezuelan gang members suggests that the Trump administration is framing gang activity as a form of irregular warfare. This aligns with previous steps taken to classify certain Cartels as terrorist organizations, a move that reflects a broader shift in how non-state actors engaged in organized crime are perceived within U.S. national security policy. By treating criminal organizations as actors in irregular warfare rather than mere criminal enterprises, the administration is likely seeking to expand the legal and military tools available to combat them.
Irregular warfare is typically understood as conflict involving non-state actors who use asymmetric tactics, including insurgency, guerrilla warfare, and terrorism, to challenge state authority. Drug cartels and transnational gangs, while not ideological insurgencies in the traditional sense, do engage in violence, territorial control, and economic exploitation that destabilize regions and threaten U.S. national security. By equating gang activity with irregular warfare, the administration could justify stronger measures such as military intervention, intelligence operations, and the application of wartime authorities, including expedited deportations and potentially indefinite detentions.
Indeed, there are several potential benefits to this approach. First, it allows for a more aggressive and coordinated response to criminal organizations that operate across borders and have ties to terrorist networks. If cartels and transnational gangs are treated as threats on par with insurgencies, then the full weight of counterterrorism and counterinsurgency strategies can be applied to dismantle them. This could lead to increased security along the U.S.-Mexico border and in urban areas affected by gang violence, potentially reducing crime and drug-related deaths. It may also pressure foreign governments, such as Mexico and Venezuela, to take stronger action against criminal groups operating within their borders.
However, there are also significant risks and potential negative consequences. Legally, the broad application of wartime authorities in a peacetime context could set a dangerous precedent, eroding civil liberties and due process protections. The use of the Alien Enemies Act against individuals who are not affiliated with a recognized enemy state raises concerns about its constitutionality and the potential for racial or ethnic profiling. Additionally, expanding the concept of irregular warfare to include gang activity could militarize domestic law enforcement, leading to increased use of force, potential human rights violations, and strained relationships between communities and government authorities.
On an international level, treating cartels and gangs as terrorist organizations or enemy combatants could escalate tensions with foreign governments. If the U.S. begins targeting these groups through military or intelligence operations, it could be seen as an infringement on national sovereignty, particularly in Latin America. Countries like Mexico have already resisted U.S. efforts to designate cartels as terrorist organizations, fearing that it could justify unilateral U.S. military action within their borders. This approach could also provoke retaliation from the criminal organizations themselves, increasing violence against American citizens and law enforcement personnel.
In conclusion, while the classification of gang activity as irregular warfare may offer tactical advantages in the fight against organized crime, it carries profound legal, ethical, and geopolitical risks that need to be thoroughly assessed. A careful balance must be struck between ensuring national security and upholding the rule of law, civil liberties, and international cooperation. On top of that, the long-term consequences of redefining criminal organizations as military threats could reshape U.S. policy in ways that may be difficult to control or reverse.