Former President Donald Trump’s Alien Enemies Act Immigration Plan: Can He Do It?

Former President Donald Trump has spent more time campaigning nationwide in recent weeks. In his rallies, he has repeatedly declared he will expel millions of undocumented immigrants from the United States should he regain the presidency.

He and his advisors allege that state and local law enforcement, the military, and U.S. Immigration and Customs Enforcement (ICE) would be involved in what they claim would be “the largest deportation in American history” while also invoking “wartime powers.”

During one of his rallies in Colorado, Trump alleged he had the authority to carry out this plan under the Alien Enemies Act of 1798, with his primary goal being to dismantle foreign criminal organizations working and living in the United States. He has since repeatedly invoked this centuries-old law as the method by which he would carry out mass deportations.

This begs the question: can he do that?

An Explanation of the Alien Enemies Act of 1798

The Alien Enemies Act of 1798 allows the President of the United States to incarcerate or deport immigrants from hostile nations during wartime.

The government enacted this law as part of the Alien and Sedition Acts when the United States was on the verge of war with France. However, presidents have only used the law three times: during the war in 1812, World War I, and after the Pearl Harbor attack in World War II.

During World War I, the United States interned over 6,300 “enemy aliens,” primarily German nationals. By the end of World War II, the United States interned over 31,000 individuals from various countries, including Germany, Japan, Italy, and Jewish Refugees seeking asylum.

While the Alien Enemies Act is still good law, all other parts of the Alien and Sedition Acts have since been declared unconstitutional.

Legal Community Skeptical

Legal scholars have expressed skepticism about Trump’s ability to rely on this rarely-invoked law. The most common criticism is that the United States has not declared war on any country. The text of the law states that the President of the United States can remove or restrain aliens present in the U.S. without due process if the U.S. has "declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government."

The U.S. has not declared war on any Central or South American country. Drug cartels operating in Mexico and South America are not a foreign government that the U.S. can declare war on. Nor do they comprise a "nation." Instead, they are gangs made up of private individuals.

Trump's suggested use of the Act would also go against centuries of precedent. In all previous instances when using the Alien Enemies Act, Congress had declared war on a foreign nation, and foreign nationals in the U.S. were treated as prisoners of war, not necessarily deported. This is what led to the infamous Japanese internment camps of the 1940s.

How Would Courts Decide the Issue?

There has already been talk about legal challenges if Trump wins and invokes the Alien Enemies Act. Anticipating any court's decision on the issue is speculative, at best. However, while some people have compared the influx of migrants to an invasion, reading the word "invasion" in the Alien Enemies Act non-literally is a stretch. Considering that the Act was passed anticipating a declaration of war and that it has only been used as a wartime power, it would be difficult to make the case that the law applies to individual criminals and criminal organizations, however well-organized they might be.

That's not to say courts would have no choice. For example, it is possible that courts could sidestep the question entirely by invoking the political questions doctrine and determine that it is not up to the U.S. judiciary to define what an invasion is.

For now, it suffices to note that there would be strong legal challenges to attempting to invoke the Act in the way Trump describes, but nothing is certain.

Some Practical Considerations

Putting the Alien Enemies Act aside, what are the practical limitations of mass deportations?

The increasing number of people seeking asylum, permanent residency, and visas to enter the United States has overwhelmed and understaffed immigration courts, making the mere logistics daunting, if not impossible. The United States Citizenship and Immigration Services (USCIS) has an existing backlog of upwards of 3.7 million cases. That is a lot of new immigration judges to hire. As far as turning everyone away or keeping them in detention centers upon arrival, the U.S. Supreme Court in 2001 ruled that the government cannot detain undocumented immigrants indefinitely if their home countries refuse to take them back.

It would also be an expensive endeavor. The American Immigration Council, an organization dedicated to supporting and representing undocumented immigrants in the U.S., estimates that this mass deportation effort would cost the United States $315 billion. The endeavor would involve the construction of new detention centers and training and employing thousands of immigration personnel.

Familiar Frustrations

We have all heard about the chaos happening at the U.S.-Mexico border, as well as the existing issues with drug cartels coming into the United States. Federal authorities acknowledge it is a problem that the country takes seriously, particularly the issue of drug trafficking.

The question remains, however, how to tackle the problem considering the prevention of family separations, which were highly controversial, the treatment that detained immigrants receive, their rights, potential labor shortages because of the high number of individuals being deported, and the significant economic disruption any mass deportation plan could cost.  

So, can Trump legally deport millions of immigrants without due process if he becomes President of the United States? Perhaps, but it's far from clear. With due process, Trump could certainly oversee the deportation of millions of immigrants, but there are practical limitations, as evidenced by his previous term, in which he oversaw the deportation of fewer individuals than the current administration.

Related Resources:

• Aliens and Nationality: Deportable Aliens (FindLaw's Learn About the Law)
• Deportation and Removal Laws (FindLaw's Learn About the Law)
• Deportation Basics (FindLaw's Learn About the Law)