A cornerstone of former President Donald Trump’s 2024 campaign was his promise to carry out the largest deportation operation in American history. The details of how he would carry out the plan are unclear. But at recent rallies, Trump has said he would use an 18th century law to enforce mass deportations.
The operation would begin in Aurora, Colorado, and would be called “Operation Aurora,” Trump said at an Oct. 11 rally in Reno, Nevada, baselessly adding that immigrants are “trying to conquer us.”
At an Oct. 11 campaign rally in Aurora, he said he would invoke the Alien Enemies Act of 1798 to expedite the removal of gang members and to “target and dismantle any criminal migrant network operating on U.S. soil.”
Trump referred to a Venezuelan gang, Tren de Aragua, which he said has taken over “several apartment complexes” in Aurora. Claims that a Venezuelan gang had taken over Aurora began in August, when a video of a group of Spanish-speaking gunmen walking through an apartment complex in the city went viral. However, local officials have pushed back, saying concerns about Venezuelan gangs in Aurora are “grossly exaggerated.”
Aurora police say they have arrested Tren de Aragua gang members, but not 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 impending war with France. The laws increased citizenship requirements, criminalized critical speech about the government, and gave the president additional powers to deport noncitizens.
Three of the laws have been repealed or expired. The Alien Enemies Act is the only one still in effect.
The law allows the president to detain and deport people from an “enemy nation or government” without a hearing when the U.S. is either at war with that foreign country or the foreign country has “committed, attempted, or threatened an invasion or incursion ‘ which is mentioned legally. a ‘predatory incursion’ against the US
“Although the law was enacted to prevent foreign espionage and wartime sabotage, it can be — and has been — used against immigrants who have done nothing wrong” and are in the U.S. legally, Katherine Yon Ebright, an expert on the subject of constitutional war powers from the Brennan Center for Justice, a nonpartisan think tank at the New York University School of Law, wrote in an Oct. 9 report.
The law was last invoked during World War II
American presidents have invoked the law three times, only in times of war:
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The War of 1812: Then-President James Madison invoked the law against British people being required to report information including their age, the length of time they had lived in the U.S. and whether they had applied for citizenship.
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First World War: Then-President Woodrow Wilson used it against people from Germany and its allies, such as Austria-Hungary.
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Second World War: Then-President Franklin Roosevelt invoked this act “to allegedly detain potentially dangerous hostile aliens,” according to the National Archives. These were mainly Germans, Italians and Japanese. The law was used to place non-citizens from those countries in internment camps. The law was not used to detain American citizens of Japanese descent. An executive order was used for this purpose.
Can Trump use the law to carry out mass deportations?
Trump has mentioned enforcing the 1798 law against Mexican drug cartels and Tren de Aragua, the Venezuelan gang.
Legal experts say Trump does not have the authority to invoke the Alien Enemies Act against gang members or as a tool for mass deportations.
To invoke this act, an invasion must be committed or threatened by a foreign government. The US is not at war with any foreign government. The law also cannot be applied broadly to people from every country.
Invoking the law “as a powerful deportation authority… flies in the face of centuries of legislative, presidential, and judicial practice, all of which confirm that the Alien Enemies Act is a wartime authority,” Ebright said in her report. “To use it in peacetime to circumvent conventional immigration law would be a staggering abuse.”
Trump and his allies have characterized the increase 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 professor of constitutional law at George Mason University, wrote in an Oct. 13 report.
Legal experts have said an attempt to use the Alien Enemies Act for mass deportations is likely to be challenged in court. However, it is unclear whether the court will make a ruling.
A court last heard a case about the Alien Enemies Act after World War II. Then-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 the questions of whether a war had ended and whether war authorities had expired were ‘political questions’ and therefore not for the courts to decide.
Similarly, some courts have said that the definition of an invasion is a political question.
Trump has previously promised mass deportations
During his 2016 presidential campaign, Trump promised to deport all immigrants living in the US illegally. However, he didn’t.
When Trump took office, an estimated 11 million people were in the country illegally. Between fiscal years 2017 and 2020, the Department of Homeland Security recorded 2 million deportations. (Fiscal year 2017 included about four months of President Barack Obama’s administration.) By comparison, Obama carried out 3.2 million and 2.1 million deportations during each of his terms.
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 its second term).”
Steve Vladeck, a constitutional law professor at Georgetown University, wrote in his Oct. 14 newsletter that there are already immigration laws allowing deportations. But one of the main challenges in 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.
Our sources
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C-SPAN, Former President Trump Campaigns in Reno, Nevada, October 11, 2024
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C-SPAN, Former President Trump Campaigns in Aurora, Colorado, October 11, 2024
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PolitiFact, city officials and residents say there is no “takeover” of Venezuelan gangs in Aurora, Colorado, September 9, 2024
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Aurora Police Department, Post, August 31, 2024
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Aurora Mayor Mike Coffman, statement, October 8, 2024
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National Archives, Alien and Sedition Acts (1798), accessed October 17, 2024
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Brennan Center, The Alien Enemies Act, Explained, October 9, 2024
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Mississippi Department of Archives and History, Alien Enemies Documents (War of 1812), 1812-1815, accessed October 17, 2024
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National Archives, World War I Enemy Alien Records, accessed October 17, 2024
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Lawfare, Immigration is not an invasion, March 25, 2024
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Just security, immigration is not an ‘invasion’ under the Constitution, January 29, 2024
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PolitiFact, The context behind Joe Biden and Donald Trump’s dueling immigration speeches at the Texas border, March 1, 2024
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The Volokh Conspiracy, Trump’s plan to use the Alien Enemies Act of 1798 as a tool for mass deportation, October 13, 2024
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PolitiFact, Donald Trump fails to keep promise to deport all immigrants illegally in the US, July 15, 2020
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Pew Research Center, Unauthorized Immigrant Population Trends for States, Countries of Birth and Regions, June 12, 2019
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PolitiFact, Ron DeSantis is right: Barack Obama has deported more people than Donald Trump, January 4, 2024
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Migration Policy Institute, Biden administration on track to match Trump’s deportation numbers – with focus on the border, not the US interior, June 27, 2024
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One First: Alien Enemies in the Supreme Court, October 14, 2024
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Trump campaign statement, October 17, 2024
This article originally appeared on Austin American-Statesman: Can Donald Trump use a 1798 law to carry out mass deportations?
