Timeline: The Alien Enemies Act
Here's a timeline of events along with relevant records in Trump's use of the law to kick out alleged members of a Venezuelan gang
Until last week, “war” was the common denominator in describing the three events for which presidents invoked the 1798 Alien Enemies Act.
The War of 1812, World War I, and World War II. You get the idea. No one disputed those were wars.
That’s not the case with President Trump’s invocation of the Alien Enemies Act — officially called “An Act Respecting Alien Enemies” when it passed 227 years ago.
The Trump Administration has to make the case that its war on the Tren de Aragua gang is a real war rather than a campaign like, say, the war on drugs in the 1980s.
The last time the Alien Enemies Act was put into use was after the attack on Pearl Harbor. Roosevelt issued a proclamation on Dec. 7, 1941, aimed at non-citizen immigrants from Japan. Similar proclamations were issued the following day that targeted German and Italian immigrants. FDR then went a huge step further three months later with a superseding executive order to put these groups in internment camps, with people of Japanese ancestry primarily affected.
Here’s a timeline of events, disputes, and records related to the fourth invocation of the Alien Enemies Act eight decades later:
Friday, March 14
Trump signs the proclamation, targeting members of the Venezuelan gang Tren de Aragua. The proclamation says the gang is a terrorist organization whose members have “unlawfully infiltrated the United States and are conducting irregular warfare and undertaking hostile actions against the United States.”
Saturday, March 15
A lot happens on this day. First, the American Civil Liberties Union and Democracy Forward quickly sue on behalf of five Venezuelans — one in New York and four in Texas. The proclamation has not been made public, but the two groups say in their petition they believe it will be signed imminently. They argue that the Alien Enemies Act “has only ever been a power invoked in time of war, and plainly only applies to warlike actions: it cannot be used here against nationals of a country —Venezuela— with whom the United States is not at war, which is not invading the United States, and which has not launched a predatory incursion into the United States.”
Later that morning, U.S. District Court Judge James Boasberg issues a temporary restraining order to prohibit the federal government from deporting the five Venezuelans.
The White House posts the proclamation invoking the 1798 law at 3:53 p.m.
In the video above from that day, Trump says:
These are criminals. Many many criminals. Murderers, drug dealers at the highest level, drug lords, people from mental institutions. That’s an invasion. They invaded our country. In that sense, this is war.
In response, Boasberg schedules a hearing for 5 p.m. that day.
During the hearing, Boasberg notes that Justice Department lawyers have not rebutted accusations that “flights are actively departing,” and tells them that any flights of Venezuelans being deported because of the proclamation should return. A government lawyer tells the judge he doesn’t have any details. The hearing recesses for government lawyers to find out more information.
After the hearing reconvenes, Boasberg issues a verbal order at about 6:45 p.m. and says, “Inform your clients of this immediately, and that any plane containing these folks that is going to take off or is in the air needs to be returned to the United States.”
Indeed, two flights had left Harlingen, Texas, at 5:26 and 5:45 p.m., according to the Associated Press.
Boasberg follows up his verbal order with a written order at about 7:25 p.m.
The Justice Department files a notice to appeal Boasberg’s ruling, at 7:26 p.m.
About 10 minutes later, another flight carrying Venezuelan deportees leaves Texas. The three flights carrying about 250 people land in El Salvador that Saturday evening and early Sunday morning. El Salvador agrees to house them in its Center for Terrorism Confinement (Cecot) prison, which has a capacity of 40,000.
Attorney General Pam Bondi issues a late evening statement that criticizes Boasberg.
“Tonight, a DC trial judge supported Tren de Aragua terrorists over the safety of Americans… The Department of Justice is undeterred in its efforts to work with the White House, the Department of Homeland Security, and all of our partners to stop this invasion and Make America Safe Again.”
Sunday, March 16
El Salvador President Nabyi Bukele tweets “Oopsie…Too late” with a laughing emoji in response to a New York Post headline that says a judge blocks Trump from invoking the Alien Enemies Act. Bukele also releases the above video of the Venezuelans on an airport tarmac and taken to prison.
Secretary of State Marco Rubio tweets his appreciation for Bukele. The roughly 250 alleged members of the Tren de Aragua gang will stay “in their very good jails at a fair price,” Rubio says.
That price? About $6 million for one year.
Monday, March 17
The Justice Department files a motion to vacate a hearing before Boasberg scheduled for 5 p.m. “and de-escalate the grave incursions on Executive Branch authority that have already arisen.”
The motion argues that Boasberg’s order didn’t take effect until it was in writing on March 15:
…the written minute order governed. It enjoined the government from “removing” the foreign terrorists ‘“pursuant to the Proclamation.” The government did not violate that injunction. As Plaintiffs themselves say, the two flights that they identified departed from the United States before 7:25 PM EDT (and, for that matter, before any oral directives).
Nonetheless, Boasberg holds a hearing to determine if the Trump administration violated his court order. A Justice Department attorney repeats the motion’s argument that the order didn’t take effect until it was put in writing. Boasberg wasn’t impressed.
You knew in the morning [of March 15] that there would be a hearing at 5 p.m., so any plane that you put into the air in or around that time you knew that I was having a hearing about. So when I said directly to turn those planes around, the idea that my written order was pithier, that this could be disregarded, that's a heck of a stretch.
One of the three flights took off after the judge’s written order, however. Boasberg orders the DOJ to submit a sworn declaration of what it represented in its motion earlier Monday — that the third flight that took off after his written order on Saturday carried detainees who were removable on grounds other than the Alien Enemies Act.
The Justice Department files a letter with the D.C. Circuit court of Appeals that says “this Court should have a chance to rule upon the Government’s request for a stay pending appeal before the district court tries to compel the Government to disclose sensitive national security information and expose itself to potential judicial micromanagement of how it conducts foreign policy and national security operations.”
Tuesday, March 18
Trump kicks the day off with a social media post that, although doesn’t mention Boasberg by name, is clearly referring to him. Trump says Boasberg is a “Radical Left Lunatic of a Judge” and that, “This judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!!!”
Chief Justice Roberts issues a statement in response:
For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.
Meanwhile, the Justice Department files the declaration about the third plane that Boasberg ordered. Robert Cerna, the acting director of Enforcement and Removal Operations for ICE in Harlingen, Texas, says “all individuals on that third plane had Title 8 final removal orders and thus were not removed solely on the basis of the Proclamation at issue. To avoid any doubt, no one on any flight departing the United States after 7:25 PM EDT on March 15, 2025, was removed solely on the basis of the Proclamation at issue.”
Boasberg orders the Justice Department to submit another declaration, this time on the two earlier flights that departed Saturday. The order says the declaration, which must be filed by noon on March 19, must answer the following five questions:
What time did the plane take off from U.S. soil and from where?
What time did it leave U.S. airspace?
What time did it land in which foreign country (including if it made more than one stop)?
What time were individuals subject solely to the Proclamation transferred out of U.S. custody?
How many people were aboard solely on the basis of the Proclamation?
Boasberg also schedules a hearing for March 21 at 2:30 p.m. The public can listen by phone. The toll free number is 833-990-9400; the meeting ID is 049550816.
Appeals court
Also on the 18th, the ACLU and Democracy Forward respond to the DOJ’s request for a stay pending appeal.
“On irreparable harm, the government claims that national security will be compromised by allowing the district court to decide these issues, even on an expedited basis. Yet the district court made clear that its order did not prevent the arrest and detention of any individual, mandate the release of any individual, or preclude removal under the immigration laws,” the motion says.
Attorneys general from 24 states file an amicus brief in support of Trump’s proclamation, saying their states are “directly impacted” by foreign gangs such as Tren de Aragua.
The brief complains that “a lone district judge certified a class of noncitizens in custody affected by the order and issued a nationwide temporary restraining order barring the Administration from immediately removing foreign terrorists, regardless of the threat they present to our citizens.”
Wednesday, March 19
The Justice Department did not file a declaration about the two earlier flights. Instead, it filed a motion to stay the order pending appeal while in the process accusing Judge Boasberg of overstepping his authority.
The motion says the case has devolved into a “picayune dispute over the micromanagement of immaterial factfinding,” and then adds:
In a series of orders this Court has requested the Government to provide it details about the movements of aircraft outside of the United States and interactions with foreign nations which have no bearing on any legal issue at stake in the case. The underlying premise of these orders, including the most recent one requiring the production of these facts ex parte today at noon, is that the Judicial Branch is superior to the Executive Branch, particularly on non-legal matters involving foreign affairs and national security. The Government disagrees. The two branches are coequal, and the Court’s continued intrusions into the prerogatives of the Executive Branch, especially on a non-legal and factually irrelevant matter, should end.
The motion also says “the court’s actions to date represent grave usurpations of the President’s powers,” and that the DOJ is “currently evaluating whether to invoke the state secrets privilege as to portions of the information sought by this Court’s order. Whether and how to invoke that privilege involves both weighty considerations and specific procedures that are not amenable to the 21-hour turnaround period currently provided by this Court’s order.”
Boasberg quickly denied the motion, but gave the DOJ another day to comply with his order, writing:
Mere hours before their filing deadline and characterizing the Court’s proceedings as ‘a picayune dispute over the micromanagement of immaterial factfinding,’ Defendants seek to stay the Court’s Order requiring them to produce in camera particular information. Although their grounds for such request at first blush are not persuasive, the Court will extend the deadline for one more day.
He also made clear it’s news to him that he was asking the DOJ to reveal state secrets.
“The Government’s Motion is the first time it has suggested that disclosing the information requested by the Court could amount to the release of state secrets. To date, in fact, the Government has made no claim that the information at issue is even classified,” says in his order.
March 28, 2025
The Justice Department files an emergency request to the U.S. Supreme Court to let it move ahead with using the Alien Enemies Act to deport immigrants the government believes are part of the Tren de Aragua (TdA) gang.
The government’s filing notes that Trump designated TdA a terrorist organization, and argues that Boasberg’s order puts national security at risk:
That order is forcing the United States to harbor individuals whom national-security officials have identified as members of a foreign terrorist organization bent upon grievously harming Americans. Those orders—which are likely to extend additional weeks—now jeopardize sensitive diplomatic negotiations and delicate national-security operations, which were designed to extirpate TdA’s presence in our country before it gains a greater foothold.
The court requested opposing lawyers to file a response by Monday, April 1.
The filing comes two days after an appeals court panel ruled 2-1 to uphold Boasberg’s temporary restraining order.
April 7, 2025
The U.S. Supreme Court vacates Judge Boasberg's temporary restraining order in a 5-4 ruling, saying plaintiffs need to file their case in Texas because that’s where they are detained.
The court also says the Venezuelan nationals must be given reasonable time to challenge their detention after the government informs them they are subject to removal under the Alien Enemies Act.
Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissented from the court's decision. They are joined in part by Justice Amy Coney Barrett. Sotomayor points to the Department of Homeland Security's failure to tell the Venezuelan detainees the reason for their transfer to a detention center in South Texas, arguing that this action violated their right to due process. She writes:
The Government's plan, it appeared, was to rush plaintiffs out of the country before a court could decide whether the President's invocation of the Alien Enemies Act was lawful or whether these individuals were, in fact, members of Tren de Aragua. Plaintiff J. G. G., for example, had no chance to tell a court that the tattoos causing DHS to suspect him of gang membership were unrelated to a gang.
There's plenty of wrong to go around on this one.
The root cause is, of course, the massive negligence of Democrats over many years that allowed border issues to grow so severe and unmanageable. Law and order break down under such conditions, forcing harsh pragmatisms of the sort now occurring in El Salvador. Not that the Martha's Vineyard set experiences the problems.
We all know by this point that the Boasbergs of the world aren't remotely bipartisan in their rushes to intervene in law enforcement. That doesn't mean he's wrong in this case, though, particularly if it were to happen that some of the people on those planes don't belong on them. But credibility is damaged. As for Trump, he rightly realizes that he'll be tied up forever if he acquiesces to every bit of lawfare against him (and he's experienced enough lawfare to know), but he also needs to pick his battles.
Talking about impeachment is smart on Trump's part and stupid on John Roberts' part. Nothing will come of it because of the 2/3 vote requirement, so it's just bluster of the sort that calls attention to the two sides' positions here, which is a political winner for Trump. Roberts, meanwhile, is still doing what he's been doing since he declared the ObamaCare mandate unconstitutional and let it live anyway - politicizing the courts in the name of "protecting" them. From his position, he's the last person who should make such a comment, and he knows it.
While I appreciate the detailed timeline, there is one key error in this report. No war is required to invoke the Alien Enemies Act. It says in relevant part:
"invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies." An invasion or predatory incursion triggers the Act.