Trump plans to use 1798 law in mass deportations
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German and Italian immigrants deemed "dangerous" by the U.S. are corralled by Secret Service operatives in Gloucester, N.J., in 1918, starting on their journey to an internment "somewhere in the South." Photo: HUM Images/Universal Images Group via Getty Images
Former President Trump is saying that to carry out mass deportations he'd employ a 226-year-old law that was previously used to detain "enemy aliens" in times of war.
Why it matters: The use of the Alien Enemies Act of 1798 in the 21st century could result in the unfair detention of lawful immigrants and their U.S.-born children, especially at a time when the outcome of a legal challenge is uncertain under the conservative-majority Supreme Court.
Catch up quick: At a campaign stop in Aurora, Colorado, last week, Trump detailed a plan to target undocumented immigrants with gang ties.
- Trump said if elected he intends to invoke the act to target "every illegal migrant criminal network operating on American soil." He's calling it "Operation Aurora."
- The former president has falsely and repeatedly suggested the Denver suburb has been taken over by the Venezuelan gang Tren de Aragua.
Background: The Alien Enemies Act, signed by President John Adams as part of the "Alien and Sedition Acts," allows the detention and removal of immigrants only when there is "a declared war between the United States and any foreign nation or government."
- Removal also can occur if "any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government."
- The act has been invoked three times, during the War of 1812, World War I and World War II.
- The law was used, for example, to detain some German and Italian immigrants during World War I, but it can't be used to hold U.S. citizens — though the U.S.-citizen children of immigrants could get caught up in it.
Yes, but: It would be difficult to use the 1798 law to hold immigrants unless Trump declares criminal networks like the Sinaloa Cartel a foreign nation, Katherine Yon Ebright, counsel in the Brennan Center's Liberty and National Security Program, tells Axios.
- Ebright says invoking the law has become popular among Republicans who have used the word "invasion" to describe current migration.
- "The rhetorical framing of migration as an invasion is not only something that turns up the temperature in the political landscape, but it's also something that is meant to conflate legal and rhetorical concepts."
- She says the law is an outdated and dangerous relic that threatens constitutional rights and could be abused by an authoritarian president.
Karoline Leavitt, Trump campaign's national press secretary, says a majority of Americans "want mass deportations of illegal immigrants and trust President Trump most on this issue."
- Leavitt says Trump will launch the largest criminal deportation in our country's history and use every effective legal mechanism, like the Alien Enemies Act of 1798, to target and dismantle every "migrant criminal network."
The big picture: Using the 1798 law is one of the steps Trump has mentioned as he talks about mass deportations and increasingly uses dark language about immigrants, calling them the "enemy from within" and falsely attacking their genes.
- Last year, he said undocumented immigrants were "poisoning the blood of our country," language echoing the rhetoric of white supremacists and Adolf Hitler.
What we're watching: U.S. Mazie K. Hirono (D-Hawaii) introduced last year the Neighbors Not Enemies Act, which would repeal the Alien Enemies Act.
- Hirono has called the Alien Enemies Act "a xenophobic law that has been used to unjustly target immigrants in the U.S. and should have been repealed long ago."
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