The Volokh Conspiracy
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Trump May Soon Try to Use the Alien Enemies Act as a Tool for Deportation
His apparent plan to do so is illegal and would set a dangerous precedent if allowed to stand.
Media reports indicate the Trump Administration may be about to invoke the Alien Enemies Act of 1798 as a tool to facilitate deportation:
The Trump administration is expected to invoke a sweeping wartime authority to speed up the president's mass deportation pledge in the coming days, according to four sources familiar with the discussions.
The little-known 18th-century law, the Alien Enemies Act of 1798, gives the president tremendous authority to target and remove undocumented immigrants, though legal experts have argued it would face an uphill battle in court.
CNN previously reported that the authority was being widely discussed at several agencies as administration officials prepared to implement the law. The primary target remains Tren de Aragua (TDA), a Venezuelan organized crime group that is now operating in the United States and other countries….
Trump had ordered his administration to designate TDA as a foreign terrorist organization and use the measure to remove those identified.
The announcement, which could come as soon as Friday, has been a moving target as officials finalize the details. The move would likely pave the way for quicker removals of certain immigrants.
I have previously written about why such a use of the Alien Enemies Act would be both illegal and set a dangerous precedent here and here.
The Act is the only part of the notorious Alien and Sedition Acts of 1798 that remains on the books. If courts let the Administration use it, they could potentially detain and deport even legal immigrants with little or no due process. However, the Act can only be used in the event of a declared war, or an "invasion" or "predatory incursion" perpetrated by a "foreign nation or government." As explained in my earlier writings about this issue, illegal migration and cross-border drug smuggling do not qualify as an "invasion" or "predatory incursion." Even if they did, they aren't being perpetrated by a "foreign nation or government." Tren de Aragua and other organized crime groups engaged in drug smuggling are pretty obviously not nations or governments.
I previously wrote about why drug cartel activities don't qualify as an "invasion" here:
The Administration uses the involvement of cartels in cross-border drug trade to buttress their position. But the fact that some cross-border smuggling is conducted by organized crime does not make it the equivalent of an armed attack. Otherwise, the United States was constantly under "invasion" under Prohibition, when armed organized crime organizations smuggled illegal alcoholic beverages across the Canadian border. Smuggling by organized crime groups is a virtually inevitable consequence of prohibition regimes, whether for alcohol in the Prohibition era or drugs today. By this theory, there is a constant, never-ending state of "invasion."
If illegal migration and drug smuggling do qualify as an "invasion," there would be dire implications that go far beyond immigration issues. States would be authorized to "engage in war" in response (even without congressional authorization), and the federal government would empowered to suspend the writ of habeas corpus, and thereby detain people - including US citizens - without charges or trial.
If Trump does try to use the Alien Enemies Act as a tool for deportation, courts should strike it down.
For more on the Alien Enemies Act, see this helpful analysis by Katherine Yon Ebright of the Brennan Center.
