Courts Might Not Stop Trump's Illicit Plans for Mass Deportations
Voters need to defeat him or he could get away with abusing the Alien Enemies Act meant for wartime
Donald Trump recently announced his intention to use the Alien Enemies Act of 1798 as a tool for mass deportation of immigrants. “I will invoke the Alien Enemies Act of 1798 ... to target and dismantle every criminal network operating on American soil,” he told a crowd in Aurora, Colorado, a Denver suburb that the right has thrust into the national spotlight to whip up fears about immigration run amok. “I will rescue Aurora and every town that has been invaded and conquered,” Trump continued, never mind that Aurora officials and residents say they are in no need of rescuing.
The Alien Enemies Act is a component of the notorious Alien and Sedition Acts. It is the only part of that legislation that remains on the books today. Unlike the more sweeping Alien Friends Act, which gave the president broad power to deport and bar any “aliens as he shall judge dangerous to the peace and safety of the United States,” and was therefore rightly denounced as unconstitutional by James Madison, Thomas Jefferson, and others, the Alien Enemies Act allows detention and removal of migrants only when there “is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government.” In that event, the president is given the power to detain or remove “all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized.”
Katherine Yon Ebright of the Brennan Center has an excellent explanation of why the Alien Enemies Act cannot legally be used against migrants from countries with which the U.S. is not at war.
As the Supreme Court and past presidents have acknowledged, the Alien Enemies Act is a wartime authority enacted and implemented under the war power. When the Fifth Congress passed the law and the Wilson administration defended it in court during World War I, they did so on the understanding that noncitizens with connections to a foreign belligerent could be “treated as prisoners of war” under the “rules of war under the law of nations.” In the Constitution and other late-1700s statutes, the term invasion is used literally, typically to refer to large-scale attacks. The term predatory incursion is also used literally in writings of that period to refer to slightly smaller attacks like the 1781 Raid on Richmond led by American defector Benedict Arnold.
Today, some anti-immigration politicians and groups urge a non-literal reading of invasion and predatory incursion so that the Alien Enemies Act can be invoked in response to unlawful migration and cross-border narcotics trafficking. These politicians and groups view the Alien Enemies Act as a turbocharged deportation authority. But their proposed reading of the law is at odds with centuries of legislative, presidential, and judicial practice, all of which confirm that the Alien Enemies Act is a wartime authority. Invoking it in peacetime to bypass conventional immigration law would be a staggering abuse.
In addition, the “invasion” or “predatory incursion” in question must be perpetrated by a “foreign nation or government.” That excludes illegal migration or drug smuggling perpetrated by private individuals and organizations, which is what is occurring at the southern border today.
One can argue that use of the word “nation” in addition to “government” means the former has a different meaning from the latter. But “nation” still doesn’t include private individuals. Rather, it could apply to state-like entities that are not recognized governments. For instance, the Hamas terrorist organization that brutally attacked Israel on Oct. 7, 2023 is not a recognized government, but did—at least until recently—have state-like control over Gaza. The same could be said for some Founding-era Indian nations (which the U.S. and European states didn’t recognize as full-fledged governments) and groups like the Barbary pirates, who were agents of Arab north African states.
And, as I have previously explained, Founding-era understandings of “invasion” are limited to large-scale armed attacks, and do not cover things like illegal migration or drug smuggling (see my amicus brief in United States v. Abbott).
Despite the strong legal arguments against it, there is a chance that Trump could succeed in using the Alien Enemies Act as a tool for detention and deportation. As Ebright notes, courts might rule that the definitions of “invasion” and “predatory incursion” are “political questions” that courts are not allowed to address. Several previous court decisions have held that the definition of “invasion” in the Constitution is a political question (thereby preventing state governments from invoking broad definitions of invasion under the Invasion Clause of Article IV in order to be able to “engage in war” in war without federal authorization), though many have simultaneously held that an illegal migration does not qualify as “invasion” because an invasion requires a large-scale armed attack (see pp. 20-22 of my amicus brief).
Ebright rightly argues that even if the definition of “invasion” is usually a political question, the use of the Alien Enemies Act as a tool for mass detention and deportation of migrants from countries with which the U.S. is not at war should fall within the exception for “an obvious mistake” or “manifestly unauthorized exercise of power” laid out by the Supreme Court in Baker v. Carr (1962). Furthermore, the entire political question doctrine is an incoherent mess, and courts should not extend it further.
Nonetheless, there is a danger that they could apply it here and let Trump get away with a grave abuse of power that could potentially harm many thousands of people. Mass deportations of the kind envisioned by Trump would create disruption, increase prices, and cause shortages. They would also destroy more American jobs than they would create, because many U.S. citizens work in industries that depend on goods produced by undocumented workers. In addition, large-scale detention and deportation routinely sweeps in large numbers of U.S. citizens, detained by mistake because of poor-to-nonexistent due process protections.
It’s also worth noting that the Alien Enemies Act applies to any migrants from the relevant countries who have not been “naturalized,” which includes legal migrants and even permanent resident green card holders. If Trump is able to use it at all, it could be deployed against legal immigrants no less than illegal ones. And he and his allies have repeatedly made clear that they want to slash legal migration as much as the illegal kind.
If Trump returns to power, it is possible that this particular plan will be stopped by the courts. But that is far from certain.
Ebright rightly recommends Congress simply repeal the Alien Enemies Act, since there are plenty of other tools to deal with actual threats to national security. Alternatively, Congress could revise the Act to make it more clear that it only applies to citizens of countries with which the U.S. is at war. Congress should also revise the Act so it no longer authorizes the removal of migrants with permanent resident status (even if their home countries are indeed at war with the U.S.). But none of these measures is likely to happen anytime soon. Thus, the only surefire way to block this dangerous abuse of power is to defeat Trump in the election.
An earlier version of this article was first published at the Volokh Conspiracy blog at Reason.
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If he wins, I say let it rip. The voters wanted it, and we deserve to get it good and hard.
Trump will ignore any court that tries to halt the process. They will have no enforcement mechanism. He will cite “TOTAL IMMUNITY” for any actions he wants to take