Trump administration lawyers have determined that an 18th-century wartime law the president has invoked to deport suspected members of a Venezuelan gang allows federal agents to enter homes without a warrant, according to people familiar with internal discussions.
The disclosure reflects the Trump administration’s aggressive view of presidential power, including setting aside a key provision of the Fourth Amendment that requires a court order to search someone’s home.
It remains unclear whether the administration will apply the law in this way, but experts say such an interpretation would infringe on basic civil liberties and raise the potential for misuse. Warrantless entries have some precedent in America’s wartime history, but invoking the law in peacetime to pursue undocumented immigrants in such a way would be an entirely new application, they added.
“It undermines fundamental protections that are recognized in the Fourth Amendment, and in the due process clause,” said Christopher Slobogin, a law professor at Vanderbilt University.
Last week, Mr. Trump quietly signed a proclamation invoking the law, known as the Alien Enemies Act of 1798. It grants him the authority to remove from the United States foreign citizens he has designated as “alien enemies” in the cases of war or an invasion.
His order took aim at Venezuelan citizens 14 or older who belong to the Tren de Aragua gang, and who are not naturalized or lawful permanent residents. “All such alien enemies, wherever found within any territory subject to the jurisdiction of the United States, are subject to summary apprehension,” the proclamation said.
Senior lawyers at the Justice Department view that language, combined with the historical use of the law, to mean that the government does not need a warrant to enter a home or premises to search for people believed to be members of that gang, according to two officials familiar with the new policy.
A department spokesman declined to comment.
Christopher A. Wellborn, the president of the National Association of Criminal Defense Lawyers, called the old law a relic that is dangerously prone to abuse — particularly when it comes to people’s right to privacy in their homes.
“The Fourth Amendment applies to everyone in the U.S., not just individuals with legal status,” he said. 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.”
The use of the law is contentious to start. It has been deployed just three other times, all during major wars, and it is unclear how the administration has deemed someone a member of Tren de Aragua.
Using the law to avoid warrant requirements would facilitate at least one part of the administration’s bid to deliver on the president’s campaign promise to cut down on immigration. Currently, immigration agents without a warrant can do little more than knock on a door and ask to come in.
Legal scholars have long criticized the law as prone to abuse. During World War II, in one of the darker chapters in the nation’s history, the law paved the way for citizens of Germany, Italy or Japan to be searched and detained.
In the past, 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,” Katherine Yon Ebright wrote in a 2024 study of the law for the Brennan Center for Justice.
Mr. Slobogin warned of the dangers inherent in the administration’s wide-ranging view of the president’s authority. The purpose of the Fourth Amendment, he said, was to ensure that someone independent of the executive branch — a judge — approved any decision to seize people or search their property.
Still, he acknowledged that the language of the Alien Enemies Act, particularly its reference to a “warrant of a president,” gave the government “at least a foot in the door with respect to arguing that the president can order this on his own authority.”
Past court cases leave unclear what a “warrant of a president” means, and whether such an order requires something similar to the probable cause standard of a judicial warrant.
Mr. Slobogin noted that a number of cases dating back to 1819 hold that the act gives the president power to remove people designated as “alien enemies” from the country “without resort or recourse to courts.” However, he added, those cases met a basic threshold that did not apply in the current situation: a declared war, or an “invasion or predatory incursion” by a foreign nation.
“That’s pretty clearly not what’s going on here,” he said.
Mr. Trump has long claimed that the country is being invaded by undocumented migrants, and has compared the problem to a war. But such rhetorical flourishes are far removed from a state of war like the one Congress declared against Japan after the attack on Pearl Harbor in 1941.
In the American war effort that followed, President Franklin D. Roosevelt invoked the Alien Enemies Act to justify detentions and searches of Japanese Americans and others.
Their status as “enemy aliens” was sufficient cause “for warrantless house raids in search of contraband,” Ms. Yon Ebright wrote in her study.
In some cases, she noted, there were warrantless spot searches. In others, search warrants were obtained solely on the basis of someone’s status as a noncitizen of Japanese, German, or Italian descent. Government officials were looking not just for people in those instances, but also for items that had been declared contraband for them to possess, such as cameras and radios.
One U.S. military document from that time declared that all that was needed to justify a search under the wartime law was an official’s belief that an “alien enemy” may be found there. It asserted that “the question of probable cause will be met only by the statement that an alien enemy resides in such premises.”
Courts are only beginning to wrestle with the implications of Mr. Trump’s order after he promptly used the act to expel more than 100 Venezuelan citizens who the administration determined were members of Tren de Aragua.
The men were flown to El Salvador on Saturday and placed in a large prison complex, under an agreement in which the United States will pay about $20,000 a person each year for El Salvador to keep the men locked up.
A federal judge in Washington paused the administration’s use of the law while he considers the underlying legal issues, ordering any planes carrying migrants deported under the act to turn around. He is now weighing whether the administration violated that order.
The Justice Department has argued that it did not defy the judge’s orders, saying that he had limited authority on matters of immigration.
https://www.nytimes.com/2025/03/20/us/politics/trump-alien-enemies-immigration-agents.html
