What laws could Trump invoke to fast track deportations?
Immigrants deported from the United States arrive in Guatemala on a ICE deportation flight during President Donald Trump's first term in February 2017. He has pledged to massively increase deportations during his second term. (Photo by John Moore/Getty Images)
President-elect Donald Trump has threatened to invoke a 1798 law known as the Alien Enemies Act to remove noncitizen gang members, drug dealers and cartel members he says are part of a “migrant invasion” in the United States. And he could try to invoke a second law to get the military involved.
The Alien Enemies Act allows the president in some circumstances to detain or deport natives and citizens of an enemy nation, explains Katherine Von Ebright, counsel in the Brennan Center for Justice’s Liberty & National Security Program, in a Brennan Center post. It was most recently used in World War II to round up an detain noncitizens of Japanese, German and Italian descent, she writes in a Chicago Tribune op-ed.
Would it work? And could the president get the military involved?
Even if Trump could carry out the plan—and there are substantial obstacles—it’s a bad idea, Von Ebright writes in the Chicago Tribune. “Using the Alien Enemies Act for peacetime immigration enforcement would be a staggering abuse of the law,” she says.
The Alien Enemies Act provides that when there is a declared war between the United States “and any foreign nation or government,” or when there is an “invasion or predatory incursion” by a foreign government, citizens and natives of the hostile nation can be “apprehended, restrained, secured, and removed as alien enemies.”
George Fishman, senior legal fellow at the Center for Immigration Studies, sees two problems with using the law.
First, gang and cartel activities would have to qualify as an “invasion” or “predatory incursion” into the United States, Fishman writes at the center’s website. So far, federal courts have resisted the argument that illegal immigration is an invasion, he says.
Second, the law only applies when the invasion is by a foreign nation or government. The argument that criminal acts of foreign gangs or cartels qualify as acts of foreign nations would be “an uphill climb in federal court,” according Fishman. He notes an argument, however, that criminals have penetrated some foreign governments to such an extent that the governments took over their illegal operations, blurring the distinction between state and nonstate actors.
The requirement that the invasion be perpetrated by a foreign nation should rule out use of the law in cases of illegal migration or drug smuggling by private individuals, according to a Volokh Conspiracy post by George Mason University law professor Ilya Somin. But there is a chance courts won’t reach the question if they decide the definition of “invasion” is a political question that courts can’t address, he writes.
There is an exception to the political question rule against court review, however, in cases of a “manifestly unauthorized exercise of power,” according to Von Ebright. And even if courts refuse to weigh in on the meaning of “invasion” or “predatory incursion,” courts could still address the constitutional issues, she says.
The law, she says, “discriminates against individuals based solely on their ancestry—allowing the government to deem groups of people loyal or disloyal, safe or dangerous, based merely on where they were born.” That raises concerns of unconstitutional ancestral discrimination, she writes in the Chicago Tribune.
“What’s more,” Von Ebright writes, “the law suffers from a near-total lack of due process, or protections against arbitrary violations of people’s rights and liberties.”
Trump likely wants to use the Alien Enemies Act because of the lack of protections, according to Jean Lantz Reisz, co-director of the immigration clinic at the University of Southern California’s Gould School of Law. “I think that Trump is citing this as a way to kind of bypass all of that due process and make it easier to arrest and deport people,” Reisz told CNN.
Trump has also pledged to end birthright citizenship, an idea that faces “steep legal hurdles,” the Associated Press reports. The 14th Amendment states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
Trump has mentioned banning birthright citizenship through an executive order or by going “back to the people,” possibly a reference to a constitutional amendment. Although a constitutional right can’t be repealed by executive order, it’s possible Trump will give it a try, leading to a legal challenge and an argument based on a key 1898 U.S. Supreme Court case, United States v. Wong Kim Ark.
That decision held that a Chinese immigrant was a U.S. citizen because he was born here, the AP article says. Some argue the case only applies to children born to legal immigrants. They claim the words “subject to the jurisdiction thereof” in the 14th Amendment allows the United States to deny citizenship to children born to parents who are in the United States illegally.
The New York Times counters that the “subject to the jurisdiction” phrase “essentially applies only to children of accredited foreign diplomats.” The argument that the phrase could exclude the children of undocumented immigrants is against “overwhelming scholarly and legal consensus,” the Times says.
Von Ebright addresses possible use of the military in immigration enforcement in a separate Brennan Center post that was also published by Just Security.
The Alien Enemies Act doesn’t authorize use of the military unless combined with the Insurrection Act, which allows the president to deploy National Guard Forces and active-duty armed forces to suppress a rebellion or insurrection, Von Ebright says.
“Despite its name,” Von Ebright writes, the Insurrection Act’s “reach is not limited to insurrections.”
In the past, the Insurrection Act has been used to suppress a rebellion such as the Whiskey Rebellion and the Civil War, to suppress labor movements and strikes, to protect civil rights and to fight civil unrest.
The Insurrection Act creates an exception to the Posse Comitatus Act, which bans federal armed forces from participating in civilian law enforcement unless expressly authorized by Congress or the Constitution, Von Ebright writes.
She sees possible legal obstacles to use of the Insurrection Act, however. Although the U.S. Supreme Court ruled in 1827 that courts could not review a president’s decision to deploy troops, a 1932 decision suggests there would be a bad-faith exception to the rule banning court review. And if courts can’t review whether a president can use troops, they may be able to review whether deployed troops are acting lawfully, she writes.
“The Insurrection Act does not (and could not) authorize the violation of constitutional rights,” she writes. “For instance, if soldiers deployed under the Insurrection Act searched homes without a warrant or an applicable exception to the Fourth Amendment’s warrant requirement, courts could intervene. Prolonged military detention under the Insurrection Act would similarly be subject to constitutional challenge.”
Updated at 12:32 p.m. to add information about birthright citizenship.</em<>
