Former President Donald Trump has floated using the Alien Enemies Act of 1798 to deport undocumented immigrants if he’s elected, a law giving the president broad powers to detain foreign nationals of countries the U.S. is at war with—which Republicans hope can be deployed against migrants even though no such war has been declared.
Former President Donald Trump speaks at the U.S.-Mexico border on August 22 near Sierra Vista, ... [+]
Trump has repeatedly invoked the Alien Enemies Act in recent days when discussing his intention to deport undocumented migrants en masse if elected, saying at a recent rally in California he would use the law “to target and dismantle every migrant criminal network operating on American soil.”
The Alien Enemies Act allows the president to direct that “all natives, citizens, denizens, or subjects” of a country the U.S. is at war with, who are male and at least 14 years old, can be “apprehended, restrained, secured, and removed as alien enemies.”
The law only applies to countries the U.S. has declared war against, or in the case of “any invasion or predatory incursion [that] is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government.”
Presidents have invoked the law during the War of 1812, World War I and World War II, with more than 6,000 German and other European nationals interned during the first World War before the Alien Enemies Act was used against German, Italian and Japanese nationals during World War II.
The Supreme Court upheld the Alien Enemies Act in 1947 with Ludecke v. Watkins, ruling the U.S. could still take action against a German national even though the war had ended.
While the U.S. is not formally at war with Mexico or any of the Central and South American nations that most of the immigrants Trump is targeting are from, it’s likely Trump would try to use the law’s language on there being an “invasion or predatory incursion” to justify his actions, claiming there’s an incursion of migrants from the southern border. (He has not yet commented specifically on how he intends to implement the policy.) Katherine Yon Ebright, counsel at the Brennan Center for Justice, argues that interpretation of the law would be a “staggering abuse” that goes against “centuries of legislative, presidential, and judicial practice,” though it remains to be seen if courts would allow it anyway. Legal scholar Steven Vladeck noted the Ludecke v. Watkins opinion did assert that courts still play a role in deciding whether the Alien Enemies Act can be used against particular foreign nationals, which Vladeck notes could keep Trump from taking “extrajudicial” action against migrants that goes against the law. Yon Ebright notes courts tend to be deferential to Congress and the president when it comes to “matters of war and peace,” however, so it remains to be seen whether they’d rule against Trump.
Rep. Ilhan Omar, D-Minn., and Sen. Mazie Hirono, D-Hawaii, have introduced legislation that would repeal the Alien Enemies Act, but opposition from Republicans makes it unlikely to pass.
Trump’s invoking of the Alien Enemies Act has been decried by Democrats and in the media, with critics claiming the ex-president is using the same law that was used to justify Japanese internment camps during World War II. Approximately 112,000 Japanese nationals and Americans of Japanese descent were detained in camps amid the U.S.’s war against Japan. While the Alien Enemies Act was used to justify detaining Japanese nationals during the war, Vladeck notes that the more sweeping internment orders also targeting U.S. citizens were enacted without any statute justifying the move. That meant the internment policy could go beyond even what the Alien Enemies Act would allow, Vladeck notes, as since that specifically targets foreign nationals, it would not have allowed the government to detain Americans of Japanese descent. Approximately 70,000 of the people sent to internment camps were U.S. citizens, according to the National Archives.
Vice President Kamala Harris has not yet outlined a specific plan on how she would handle immigration, beyond backing the bipartisan border bill that Trump helped stop Congress from passing. That legislation would take steps like imposing more restrictions on border crossings and raise the bar for claiming asylum, but would not authorize any mass deportation of immigrants like Trump has pushed. Harris has called for “comprehensive reform[s]” to the immigration system and has reversed her position on immigration during the 2020 presidential campaign, when she said she agreed unlawful border crossings should be decriminalized. “We have laws that have to be followed and enforced that address and deal with people who cross our border illegally,” she told CNN after becoming the presidential nominee. “And there should be consequences.”
Immigration has become a central issue in the presidential election, after a sharp increase in unauthorized migration across the U.S.-Mexico border in the early years of the Biden administration. Republicans have slammed the Biden administration’s immigration record and attacked Harris as being the administration’s “border czar,” a title she never actually held. Trump has made his call for mass deportations of undocumented immigrants a central policy proposal in his campaign, and he and running mate Sen. JD Vance, R-Ohio, have attacked migrants’ impact on the U.S., including by making false claims about Haitian migrants in Ohio. Trump has previously said he would kick off his mass deportation policy on “Day One” of his presidency if he’s elected, touting his proposal as the “largest deportation operation in American history.” His promises come after Trump took numerous steps against immigrants during his first term, including by implementing a travel ban for some majority-Muslim countries and a “zero tolerance” policy on unlawful border crossings that resulted in widespread family separations.
The Alien Enemies Act, Explained (Brennan Center for Justice)
Alien Enemies in the Supreme Court (One First)