Republican presidential candidate Donald Trump salutes in Aurora, Colorado on October 11th. At the rally and elsewhere, he spoke about using centuries-old laws to facilitate the deportation of certain illegal immigrants. Alex Brandon/AP Hide Caption
Toggle caption Alex Brandon/AP
Former President Donald Trump, whose increasingly hard-line anti-immigrant rhetoric has dominated his bid for the White House, says he is using an obscure centuries-old law to facilitate the forced removal of illegal immigrants from the United States. I’m professing it.
“I will invoke the Alien Enemies Act of 1798 to target and dismantle every immigrant criminal network operating on American soil,” he said at a recent rally in California, including several It was one of the meetings.
President Trump has vowed to use the law, if re-elected, to launch a federal effort called Operation Aurora to target undocumented immigrants. Arrest and deport immigrant gang members.
He also suggested the law could be used to eliminate sanctuary cities, which limit cooperation with federal immigration authorities, telling Fox News’ Harris Faulkner that “there is no point in forcing people out of the country. There are things we can do,” he said.
The Alien Enemies Act was not only mentioned in President Trump’s speech.
It was also named in the Republican Party’s official 2024 platform, which states that the law would “export all known or suspected gang members, drug traffickers, and cartel members from the United States and eliminate gang violence by illegal aliens.” The government said it would implement a law to “put an end to the misery of the And for everyone. ”
As President Trump acknowledged, in the more than 200 years since the law was enacted, it has received little attention, much less use.
“There was a time when we had tough politicians,” he told a crowd of supporters in Arizona. “Think about it, 1798. Oh, that’s a powerful act. We couldn’t pass something like that today.”
So what exactly does this law do, and what are the chances that President Trump will be able to use it as promised?
What is the purpose of the Alien Enemies Act?
The Alien Enemies Act specifically authorizes the president to detain, relocate, or deport noncitizens from countries deemed enemies of the United States during wartime.
“Whenever there is a declaration of war between the United States and a foreign nation or government, and the President of the United States publicly declares such a state of affairs, all indigenous peoples, nationals, residents, or subjects of the hostile nation or government shall , any male person 14 years of age or older who is in the United States and not actually naturalized may be arrested, detained, secured, and removed as a foreign enemy.
When the United States was on the brink of war with France, Congress, with the support of President John Adams, passed the Alien Enemies Act as part of the Four Alien and Sedition Acts of 1798.
“There was a lot of fear-mongering propaganda about American supporters of France and basically a conspiracy to bring the United States over to France,” said Steve Vladeck, a professor at Georgetown University Law Center.
This controversial set of laws significantly restricted civil liberties, including increasing restrictions on foreign-born Americans and restricting speech critical of the government.
When President Thomas Jefferson was elected in 1800, he repealed or allowed most laws to expire, except for the Alien Enemies Act, which had no expiration date.
This law not only remained on the books, but continued to expand in scope. Congress amended it to include women in 1918.
When was this act used before?
This 1918 photo shows “enemy aliens” being corralled by Secret Service operatives in Gloucester, New Jersey, on their way to internment in the South. HUM Images/Universal Image Group (via Getty Images) Hide caption
toggle caption HUM Images/Universal Images Group (Getty Images)
The Alien Enemies Act has been used three times in American history, each time in connection with a major military conflict.
During the War of 1812, all British nationals living in the United States were required to report information such as age, length of stay, place of residence, family structure, and whether they had applied for naturalization.
A century later, during World War I, President Woodrow Wilson invoked the system against nationals of the Central Powers, including the German Empire, Austro-Hungary, the Ottoman Empire, and Bulgaria.
According to the National Archives, U.S. authorities used this law to place more than 6,000 “enemy aliens,” many of them Germans, in concentration camps, some of whom were held for up to two years after the fighting ended. Some people were still there.
The U.S. Marshals Service said it had registered 480,000 German “enemy aliens” and arrested 6,300 between the declaration of war in April 1917 and the armistice in November 2018.
Most recently, President Franklin Roosevelt invoked this law after the attack on Pearl Harbor, which designated Japanese, Germans, and Italians as “foreign enemies” during World War II.
President Roosevelt’s proclamation required residents of all three countries to register with the U.S. government and authorized the internment of foreign enemies “deemed potentially dangerous to the peace and security of the United States.”
By the end of World War II, more than 31,000 enemy aliens and their families, including Jewish refugees from Nazi Germany, were interned in camps and military installations across the United States, according to the National Archives. Thousands of them were eventually repatriated to their countries of origin, either by choice or by force.
Vladeck said the Aliens and Hostiles Act was used primarily to detain Italians and Germans. The majority of the more than 100,000 Japanese Americans held in internment camps during the war were U.S. citizens and were detained on a variety of legal grounds.
How strong is Mr. Trump’s case?
The law hasn’t been invoked since World War II, but Vladek said that’s largely because the nature of warfare has changed over the past 80 years.
The fine print of the law says the president can assume this power only if Congress declares war, and the U.S. has been involved in many conflicts over the decades, but since 1942 It has not formally exercised such authority.
“There was no declaration of war, so it’s not a source of modern controversy,” he explains. “And no one has ever tried to argue that the words invasion or predatory invasion could be used in any situation other than conventional war.”
That is, until Trump. The former president, who has a long history of using dehumanizing language against minorities and political opponents, has repeatedly referred to the influx of immigrants into the United States as an “invasion” and pledged mass deportations.
But he doesn’t condemn any specific countries or conflicts that fall within the scope of the 1798 law, which Vladek said is one reason he doesn’t think Trump’s argument will succeed.
Some anti-immigrant advocates who support the introduction of the law acknowledge these important legal challenges.
Defining illegal immigration as an invasion and immigrant gangs as a foreign country would be an “uphill climb in federal court,” said George Fishman, a former deputy assistant attorney general at the Department of Homeland Security in President Trump’s administration. he wrote last year.
What are the possible outcomes?
Vladek said President Trump does not need the Alien Enemies Act to go after illegal immigrants, noting that the president already has the authority to arrest, detain and remove illegal immigrants.
“The problem that has held back the last four presidents, both parties, was not legal authority, but a lack of resources,” he says. “The federal government does not have the ability to identify, track, round up, and remove each and every one of the more than 11 million illegal immigrants in this country.”
One of the main obstacles is a lack of funding for immigration enforcement, an issue that lawmakers sought to address with a bipartisan border security bill earlier this year. It would have spent $20 billion on border regulations and implemented several policy changes to adjust and speed up the asylum process.
Senate Republicans blocked the bill under pressure from President Trump, but Democratic critics say it was part of the president’s campaign effort to end the border chaos.
“The irony is that President Trump is now bringing up this old and anachronistic law to solve a problem that could have been solved more directly and less controversially. , I think this should not be forgotten for people who are learning about these government authorities,” says Vladek.
A 1942 poster informs U.S. residents of Japanese, German, and Italian nationality to apply for a certificate of registration at their local post office. Getty Images Hide Caption
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If Trump were to be re-elected and proceed to exercise these powers, which he can do unilaterally unless a majority of the House and Senate block them, he would be immediately challenged in court and would be difficult to defend, Vladek said. is thinking.
“Firstly, he doesn’t need it, and secondly, he favors courts using this kind of power when it is a real overreach in a legal power that is already quite controversial.” “The kind of idea that we would see that, I think that’s pretty far-fetched,” he says.
Katherine Yon Ebright, a consultant in the Brennan Center’s Freedom and National Security Program, said it’s unclear whether courts will step in to prevent the Alien Enemies Act from being used in peacetime.
“The last time the Alien Enemies Act was challenged, in Ludecke v. Watkins in 1948, three years after the end of World War II, the Supreme Court upheld President Harry S. Truman’s expanded reliance on the Act.” she writes in Legal Analysis. . “The Court reasoned that the question of when wars end and wartime authorities expire is too ‘political’ for judicial resolution.”
On the other hand, she says a lot has changed since then, including modern understandings of equal protection and due process.
The courts and the people rejected the 1944 Korematsu case, which upheld the internment of Japanese people. Congress paid reparations to surviving Japanese Americans and formally apologized for the use of the Alien Enemy Act during World War II. Courts could look at these legal challenges differently if the president invokes the law again, she says. “On the merits of the case, rather than leaving it categorically to the president.”
But the surest way to prevent abuse of this law is for Congress to actively repeal it, writes Jon Ebright.
Some Democratic lawmakers, including Rep. Ilhan Omar of Minnesota and Sen. Maisie Hirono of Hawaii, have attempted in recent years to introduce “your neighbor is not your enemy” legislation that would repeal the Alien Enemy Act. Support rates have not increased.
Omar resurfaced her calls for action in light of President Trump’s recent comments, writing on X that “it is past time to consign this xenophobic law to the dustbin of history.”
