A cornerstone of former President Donald Trump's 2024 campaign has been his promise to carry out the largest deportation operation in US history. Details of how he would carry out the plan were unclear. But at recent rallies, Trump has said he will use an 18th-century law to enforce mass deportations.
The deportation operation will begin in Aurora, Colorado, and will be called “Operation Aurora,” Trump said at an Oct. 11 rally in Reno, Nevada, adding that immigrants are “trying to get us.”
That same day, at a campaign rally in Aurora, he said he would invoke the Alien Enemies Act of 1798 to expedite the removal of gang members and “target and dismantle all immigrant criminal networks operating on American soil.”
Trump was referring to a Venezuelan gang, Tren de Aragua, which he said has taken over “multiple apartment complexes” in Aurora. Claims that a Venezuelan gang had taken over Aurora began in August, when a video of a group of armed Spanish-speaking men walking through a city apartment complex went viral. However, local officials have pushed back, saying that concerns about Venezuelan gangs in Aurora are “extremely exaggerated.”
Aurora police say they have arrested Aragua Train gang members, but I have not said they had taken over apartment complexes.
Here's what we know about the 1798 law that Trump promised to invoke and what legal experts say about Trump's ability to use it for mass deportations.
What is the Alien Enemies Act of 1798?
The Alien Enemies Act of 1798 is part of a larger set of four laws (the Alien and Sedition Acts) that the United States passed because it feared an imminent war with France. The laws increased citizenship requirements, criminalized statements critical of the government, and gave the president additional powers to deport noncitizens.
Three of the laws were repealed or expired. The Foreign Enemies Law is the only one that is still in force.
The law allows the president to detain and deport people from a “hostile nation or government” without a hearing when the United States is at war with that foreign country or the foreign country has “perpetrated, attempted, or threatened” a legally designated invasion or incursion. . a “predatory raid” against the United States.
“Although the law was enacted to prevent foreign espionage and sabotage in times of war, it can be – and has been – used against immigrants who have done nothing wrong” and who are legally in the US, Katherine Yon Ebright , expert on constitutional war powers. at the Brennan Center for Justice, a nonpartisan think tank at New York University School of Law, wrote in an Oct. 9 report for the Brennan Center for Justice.
The law was last invoked during World War II.
American presidents have invoked the law three times, during wartime alone:
- The War of 1812: Former President James Madison invoked the law against Britons who were required to submit information including their age, how long they had lived in the United States and whether they had applied for citizenship.
- World War I: Former President Woodrow Wilson invoked the law against people from Germany and its allies, such as Austria-Hungary.
- Second World War: Former President Franklin Roosevelt invoked the law “to detain supposedly potentially dangerous enemy aliens,” the National Archives said. Among them were mainly Germans, Italians and Japanese. The law was used to place non-citizens of those countries in internment camps. The law was not used to detain American citizens of Japanese descent. An executive order was used for that.
Can Trump use the law to carry out mass deportations?
Trump has mentioned the application of the 1798 law against Mexican drug cartels and the Tren de Aragua, the Venezuelan gang.
Legal experts said Trump does not have the authority to invoke the Alien Enemies Act against gang members or as a tool for mass deportations.
To invoke the act, a foreign government must perpetrate or threaten an invasion. The United States is not currently at war with any foreign government. The law also cannot be used broadly for people in all countries.
Invoking the law “as a turbocharged deportation authority…is at odds with centuries of legislative, presidential, and judicial practice, all of which confirms that the Alien Enemies Act is a wartime authority,” Ebright said in his report. “To invoke it in peacetime to circumvent conventional immigration law would be a staggering abuse.”
Trump and his allies have characterized the rise in illegal immigration under President Joe Biden as an invasion. Legal and immigration experts disagree with the characterization.
Illegal migration or drug smuggling at the southern border is not an invasion, Ilya Somin, a constitutional law professor at George Mason University, wrote in an Oct. 13 report for the online magazine Motive.
Legal experts have said that an attempt to use the Alien Enemies Act for mass deportations would likely be challenged in court. However, it is unclear whether the courts will issue a ruling.
A court last heard a case involving the Alien Enemies Act after World War II. Former President Harry Truman had continued Roosevelt's invocation of the law for years after the end of the war. At the time, the court ruled that whether a war had ended and whether wartime authorities had expired were “political questions” and therefore not for the courts to decide.
Similarly, some courts have previously said that the definition of invasion is also a political question.
Trump has previously promised mass deportations.
During his 2016 presidential campaign, Trump promised to deport all immigrants living in the United States illegally. However, he failed to do this.
When Trump took office, an estimated 11 million people were in the country illegally, according to data from Pew Analysis. From fiscal years 2017 to 2020, the Department of Homeland Security recorded 2 million deportations. (Fiscal year 2017 included approximately four months of former President Barack Obama's administration.) By comparison, Obama carried out 3.2 million and 2.1 million deportations during each of his terms, respectively.
The Migration Policy Institute, a nonpartisan think tank, reported in June that the Biden administration has carried out 4.4 million deportations, “more than any presidential term since the George W. Bush administration (5 million in his second term).
Steve Vladeck, a constitutional law professor at Georgetown University, wrote in his Oct. 14 newsletter that immigration laws already exist that allow for deportations. But a major challenge to carrying out a mass deportation operation is the lack of resources needed to find, detain and deport large numbers of people.
“Relying on an old statute will not help solve the resource problem,” Vladeck said.
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