(NewsNation) — Former President Donald Trump has said he would use the Alien Enemies Act of 1798 to carry out mass deportations, referring to “illegal migrant criminals” in a speech in Aurora, Colorado.
Trump has campaigned heavily on immigration, claiming without evidence that other countries are purposefully sending prisoners or people from psychiatric hospitals to enter the U.S. illegally.
What is the Alien Enemies Act of 1798?
The Alien Enemies Act of 1798 was drafted for wartime and allows the president to detain or deport natives and citizens of an enemy nation, without hearings and based only on country of birth or citizenship.
The law was meant to prevent espionage and sabotage but it has also been used to deport immigrants who are lawfully present in the U.S. and who have not committed any crimes.
The act was used three times; first, during the War of 1812, then in both World War I and World War II, each time targeting immigrants for detention or expulsions.
The most well-known use of the law was the internment of Japanese Americans during World War II when Japanese immigrants were stripped of their property and forced into internment camps. Though lesser-known, some German and Italian Americans were also interned during the conflict.
The conditions for invoking the Alien Enemies Act include use during “declared war” or threats of “invasion” of U.S. territory. Because presidents don’t have the authority to declare war, they must wait for Congress to do so.
Could Trump use the law to deport immigrants?
But there is no such wait if the law is being invoked on the basis of a threatened or ongoing invasion because the president has the authority to respond to sudden attacks.
When it comes to Trump’s threats, the main issue would be what constitutes an invasion. Historically, the term is used to refer to large-scale attacks on the U.S.
Trump and other Republicans, however, have repeatedly referred to an influx of immigration as an invasion and suggested a non-literal invasion of the term could give the president the authority to invoke the act, something that would go against centuries of legislative and judicial precedent that confirm the act is a wartime authority.
Presidents have historically used the law to detain people after conflicts have ended. World War I ended in 1918, but President Woodrow Wilson continued to intern German and Austro-Hungarian immigrants until 1920.
After World War II ended in 1945, President Harry S. Truman continued to intern and deport immigrants until 1951, something the Supreme Court upheld.
What are the arguments for and against using the law?
Opponents of the Alien Enemies Act argue it discriminates against immigrants based on citizenship or ancestry in violation of the Fifth Amendment. Another argument is that the act runs contrary to the right to be free from indefinite civil detention.
Some argue repealing the Alien Enemies Act would leave the U.S. vulnerable in the event of war. However, the law was written at a time when the U.S. had no formal immigration law or federal intelligence or law enforcement agencies.
In the current day, however, there are large bodies of immigration, criminal and intelligence law that are dedicated to finding and punishing espionage, sabotage and other activities regardless of the nationality of the perpetrator.
Would the courts allow the use of the act?
A key question would be whether the Supreme Court would uphold the peacetime use of the Alien Enemies Act. While that use would go against the historical intent of the law, justices may use the political question doctrine to void weighing in on the issue.
That doctrine discourages the Court from addressing issues that fall within the president or Congress’s constitutional duties. It has been used to dismiss claims in the 1990s that the Clinton administration was allowing a migrant “invasion” and also to rule that a president’s recognition of a foreign government is binding.
Even if the courts declined to weigh in on what constitutes an invasion based on the political question doctrine, they could potentially consider constitutional issues, specifically claims that the use violates the Constitution’s guarantees of due process and equal protection.
Congress could also repeal the act it self to prevent, something already proposed in bills from Rep. Ilhan Omar, D-Minn., and Sen. Mazie Hirono, D-Hawaii.
