Lawyers for Donald Trump’s administration are considering whether his invocation of an 18th century wartime law allows federal law enforcement officers to enter homes without a warrant.
The president has deployed the Alien Enemies Act to rapidly deport, without due process, alleged members of Venezuela’s Tren de Aragua gang, designated a foreign terrorist organization. Officials, however, have admitted that many of the immigrants flown to a prison in El Salvador last weekend don’t have criminal records.
Trump is relying on the law for only the fourth time in U.S. history. It was most recently used to detain Japanese Americans, including U.S. citizens, during the Second World War.
“Terrorists don’t get to hide behind closed doors,” said an official with the Department of Justice in a statement to The Independent from the White House.
The administration is mulling whether federal agents can search for suspected gang members inside peoples’ homes without securing a warrant from a judge, The New York Times first reported, citing people familiar with the discussions.
It’s unclear whether the administration is providing law enforcement agencies with that guidance, which could amount to a drastic breach of the Fourth Amendment and constitutional protections against unreasonable searches and seizures.
Civil rights groups and legal experts are sounding the alarm, noting the president could be relying on the broad scope of the Alien Enemies Act to get around criminal and immigration law.
“The Fourth Amendment applies to everyone in the U.S., not just individuals with legal status,” Christopher A. Wellborn, president of the National Association of Criminal Defense Lawyers, told the Times. “Taking away that right would be an “abuse of power that destroys our privacy, making Americans feel unsafe and vulnerable in the places where our children play and our loved ones sleep.”
That officials are considering the idea marks a “potential escalation in how Trump is going to use the Alien Enemies Act,” according to Katherine Yon Ebright, counsel in the liberty and national security program at the Brennan Center for Justice at NYU Law.
“Thus far, it’s been used to deport Venezuelan immigrants. But the administration believes it can be used to search Venezuelan immigrants’ homes and arrest them, even without a warrant,” she said. “It is impossible to overstate how important it is for our judicial institutions, our Congress, and for every American to stand against this blatant attempt to re-run internment.”
In her 2024 report on the Alien Enemies Act, Yon Ebright noted that the law has been interpreted to “extend the president’s authority to not only detaining and deporting noncitizens but also controlling their speech, movements and livelihoods.”
The Second World War invocation of the act to justify the detention of Japanese Americans as “enemy aliens” provided sufficient legal grounds “for warrantless house raids in search of contraband,” Yon Ebright wrote.
One U.S. military document from the time included in her report declared an official only needed to determine a person’s status as an “alien enemy” to perform a search. “The question of probable cause will be met only by the statement that an alien enemy resides in such premises,” the document states.
Trump’s order states that “all Venezuelan citizens 14 years of age or older who are members of [Tren de Aragua], are within the United States, and are not actually naturalized or lawful permanent residents of the United States are liable to be apprehended, restrained, secured, and removed as Alien Enemies.”
Last week, dozens of Venezuelans were deported from the United States on a series of flights to El Salvador, where they were shackled and shaved before they were locked in a notorious prison that human rights organizations have called a “tropical gulag.”
A federal judge issued a temporary restraining order while two of the planes were still airborne, and a standoff between the judge and administration officials to determine whether they intentionally defied his court orders and refused to turn the planes around has sparked fears of a constitutional crisis.
“Why was this proclamation essentially signed in the dark on Friday or Friday night or early Saturday morning and people rushed onto planes?” Judge James Boasberg asked government attorneys during a court hearing March 21. “Seems to me the only reason to do that is if you know it’s a problem and you want to get them out of the country before a suit’s filed.”
Boasberg repeatedly questioned how officials are determining whether someone is a member of Tren de Aragua, without due process, and what legal recourse exists if the administration deported someone to El Salvador or elsewhere under the Alien Enemies Act if they are not a member of the gang.
The administration has admitted in court filings that “many” of the nearly 300 Venezuelans on those flights don’t have a criminal record. In a sworn statement to the court, Immigration and Customs Enforcement official Robert Cerna claimed that a lack of a criminal record “actually highlights the risk they pose” and “demonstrates that they are terrorists with regard to whom we lack a complete profile.”
Attorneys and family members have warned the court that their clients and relatives — some of whom have their asylum hearings in the coming weeks and months — have disappeared from the United States and cannot be reached in El Salvador’s prison. Attorneys for the American Civil Liberties Union, which sued to stop the deportations under the Alien Enemies Act, also claimed that women and immigrants who were not from Venezuela were on the flights, but returned to the United States because the Salvadoran government would not accept them.
The Trump administration has appealed the judge’s order blocking use of the Alien Enemies Act to deport suspected gang members. A panel of appellate court judges will hear arguments on March 24.
