Think Immigration: The 1798 Alien Enemies Act and the Death of Due Process in Los Angeles
This blog post is in a Q&A format between AILA Media Advocacy Committee Chair Shannon Shepherd and Jake Alnapulsi, a recent graduate of the University of California, Los Angeles (UCLA). His research focuses on the intersection of political theory and immigration law, with a particular emphasis on the evolution of due process and legal personhood.
Can you lay out the recent context for us? What was happening in Los Angeles?
In early 2025, the streets of Los Angeles became the frontline of a new and radical phase in U.S. immigration enforcement. Thousands of National Guard troops were federalized over the objections of state leadership, marking a shift from civil administrative enforcement to a militarized operation. But, I would argue that while the physical presence of troops on city streets caught the public’s attention, a more quiet—and perhaps more dangerous—legal transformation was taking place in the courtrooms.
By that I mean, the Administration’s recent invocation of the Alien Enemies Act of 1798 to justify mass detentions and deportations, which represents a fundamental break from the American legal tradition. By treating noncitizens as "internal enemies" under a wartime statute, the government is not just enforcing border policy; it is systematically erasing the "right to have rights."
Tell us a bit about the history.
The Alien Enemies Act was originally designed for use during declared wars to allow the president to apprehend and remove citizens of an enemy nation. Today, as seen in the case of J.G.G. v. Trump, this 18th-century tool is being applied to modern migration. By labeling Venezuelan nationals allegedly affiliated with gangs as "alien enemies," the executive branch believes it has found a loophole to bypass the entire immigration court system.
As Justice Sotomayor noted in her recent dissent, these removals have occurred without notice, without hearings, and often based on evidence as flimsy as a "tattoo seen on Google." This is a "covert operation" designed to avoid judicial scrutiny. When the government uses wartime powers in a time of peace, the noncitizen ceases to be a legal person and instead becomes an administrative problem to be managed through force.
What do you mean, ceases to be a legal person?
Political theorist Hannah Arendt famously argued that the most fundamental loss a person can suffer is the "right to have rights"—the right to belong to a political community where one is judged by their actions and opinions. Arendt warned that the calamity of rightlessness begins when individuals lose the space to appear before others as a person before the law. The current deportation machine enacts exactly this kind of erasure. Through the expansion of expedited removal and the use of militarized task forces, the legal system has become a "procedural foreclosure." In cases like DHS v. D.V.D., we see the Supreme Court allowing deportations to third countries with less than 16 hours’ notice. When a gay man granted protection from removal can be whisked away to a dangerous third country without his counsel being notified, the law has ceased to be a shield. It has become a mechanism of invisibility. This legal invisibility is reinforced by the "Task Force Model" of enforcement. Under expanded 287(g) agreements, National Guard troops are performing functions historically reserved for civilians. As noted by experts at Just Security, this collapses the boundary between law and force.
When barely trained paramilitary forces are granted sovereign power over life and liberty, oversight withers. The presumption of innocence is replaced by a "preemptive security operation" where suspicion alone justifies detention. This doesn't just affect the undocumented; it changes the dynamic of civic life for everyone. A neighbor who can be "summarily removed" without a process to test the legality of their arrest is a neighbor who has been cast outside the realm of shared humanity.
What’s the solution here?
The solution to this crisis is not merely a change in policy, but a restoration of the "right to appear." Data from the Vera Institute shows that access to counsel dramatically changes outcomes. Universal representation transforms deportation from an opaque pipeline into a contested legal space where personhood can be asserted.
Rights are not self-executing; they require a political space where they can be claimed. A democracy that permits the systematic erasure of those under its authority—treating them as "internal enemies" to be vanished by a 230-year-old statute—abandons its claim to legitimacy. To safeguard the rule of law, we must ensure that all persons, regardless of status, have the right to appear before the law as subjects entitled to recognition and judgment.
About the Author: Jake Alnapulsi
Location: Los Angeles, CA
Related Resources:
- AILA Sends List of Demands to Congress Highlighting Measures to be Implemented before Voting for DHS Funding: AILA urges Congress to say NO to funding DHS until measures are implemented to check unlawful DHS policies that are leading to chaos, violence and death in American communities. AILA and coalition partners sent the following 10 demands for Congress to enact before it passes any funding for DHS.
- Policy Brief: The Alien Enemies Act: Read AILA's analysis of the Trump administration's recent use of the wartime authority, the Alien Enemies Act (AEA). This archaic authority was recently used to remove hundreds of alleged gang members to El Salvador without prior notice or due process.