Donald Trump has consistently emphasized his commitment to deporting undocumented immigrants. During his 2016 campaign, he declared, "We are going to get them out, and we're going to get them out fast." In his 2024 campaign, he pledged to "begin the largest deportation operation in the history of our country." His running mate, JD Vance, estimated that this operation could remove 1 million people per year. Trump’s immigration adviser, Stephen Miller, suggested that National Guard troops from cooperative states could be deployed to assist with deportations. These statements underscore Trump’s intention to implement large-scale deportations if re-elected.
Donald Trump is anticipated to mobilise agencies across the US government to push for record levels of immigrant deportations, building on efforts from his first term to utilise all available resources and exert pressure on “sanctuary” jurisdictions to cooperate, according to six former Trump officials and allies. In a dramatic comeback, Trump defeated Democrat Kamala Harris , with Edison Research projecting the win and Trump declaring he had received an “unprecedented and powerful mandate.” Supporters, some of whom could join his administration, expect Trump will call on entities from the military to diplomats abroad to turn his campaign pledge of mass deportations into reality. His plans involve collaborating with Republican-led states and using federal funding as leverage over resistant areas.
Trump’s return to the White House is marked by a promise of a broad immigration crackdown, with his running mate, JD Vance, estimating an operation that could lead to the deportation of one million people per year. Immigration advocates warn that this approach would be costly, divisive, and inhumane, causing family separations and affecting communities. Edison Research exit polls indicate a divide among voters: 39% believe most immigrants in the US illegally should be deported, while 56% favour allowing them to apply for legal status.
During Trump’s previous term, he faced challenges in scaling up deportations. Despite this, President Biden reportedly deported more immigrants in fiscal year 2023 than Trump did in any year of his term, according to government data. However, a large-scale deportation initiative targeting millions would necessitate significantly more officers, detention facilities, and immigration court judges. The American Immigration Council has estimated that deporting 13 million undocumented immigrants would cost approximately $968 billion over a decade.
Tom Homan, a former acting director of Immigration and Customs Enforcement (ICE), anticipated to join Trump’s team, remarked that the scale of deportations would depend on the availability of officers and detention capacity. The incoming administration might benefit from experience gained in Trump’s first term, though it may encounter pushback from ideologically opposed employees, including those screening asylum seekers.
The American Civil Liberties Union (ACLU) and other immigrant advocacy groups are preparing for court battles if Trump once more tests his legal authority. Lee Gelernt, an ACLU attorney who led opposition to Trump’s family separation policy, noted that more than 15 immigration-focused lawyers within the organisation have been preparing for Trump’s potential return, with plans to increase resources and coordination.
Trump’s second term could see a more assertive approach from the State Department, a factor in his plans that struggled to gain momentum during his first term due to issues with other countries accepting repatriated citizens. Some Trump allies, like former Deputy Homeland Security Secretary Ken Cuccinelli, argue that stronger State Department appointees will be crucial to advancing Trump’s immigration goals.
Around half of ICE’s 21,000 employees are part of Homeland Security Investigations (HSI), which focuses on transnational crime rather than immigration enforcement. Some Trump supporters believe HSI would need to dedicate more resources to immigration matters.
Stephen Miller, Trump’s immigration adviser during his first term, suggested that cooperative states might deploy National Guard troops to resistant states to assist with deportations, a move likely to spark legal battles. Trump also plans to invoke the Alien Enemies Act of 1798, allowing rapid deportation of alleged gang members. While this action would likely face legal challenges, Trump’s supporters believe it could be a potent tool, though critics warn it might lead to indefinite detention without judicial review.
Some allies, like former DHS official George Fishman, caution against overpromising, noting that using this statute could require proving foreign government involvement in sending immigrants to the US. The ACLU and others have raised concerns about the possible misuse of the law, which was previously invoked during the War of 1812, World War I , and World War II .
Explained: The Alien Enemies Act Trump Wants to Use to Deport People
At his recent rally in Macon, Georgia, Donald Trump continued to capture headlines with his remarks on immigration, signalling his intention to invoke the Alien Enemies Act of 1798. This law, a relic from America’s early years, was notably used to detain and deport immigrants during major conflicts like the War of 1812 and World War II. Trump’s rally rhetoric called attention to his plans to leverage this obscure legislation to address undocumented immigration, sparking considerable debate around its historical usage and constitutional implications.
What is the Alien Enemies Act?
The Alien Enemies Act, part of the Alien and Sedition Acts of 1798, was originally designed as a wartime measure. It grants the president the authority to detain or deport nationals of a hostile foreign country, even without a trial, during times of declared war or if there is a credible threat of invasion or “predatory incursion” against the United States. Though initially intended to address foreign espionage and sabotage, it has been invoked in ways that can disproportionately affect immigrants who are legally in the United States. Trump’s pledge to use this law underscores its capacity to be adapted for contemporary political aims, albeit with significant legal and ethical questions.
Historical Context and Past Use of the Alien Enemies Act
The Alien Enemies Act has been deployed three times in history, each instance coinciding with major wars involving the United States. During the War of 1812, World War I, and World War II, the law facilitated restrictions, detentions, and even deportations targeting immigrants from enemy nations, including German, Austro-Hungarian, Japanese, and Italian nationals. Most notoriously, this law was used to intern Japanese Americans during World War II, an act for which the U.S. government later apologised. These instances illuminate the Act's power but also serve as cautionary tales about potential civil rights abuses when fear drives immigration policy.
Trump’s Interpretation: A New Context for an Old Law
Trump’s remarks reveal a notable shift in the interpretation of “invasion” and “predatory incursion.” While traditionally associated with large-scale military threats, some contemporary politicians, including Trump, argue for a non-literal interpretation that could encompass undocumented migration or cross-border drug trafficking. Proponents of this approach view the Alien Enemies Act as a powerful tool to expedite deportations and circumvent traditional immigration laws. However, such an interpretation conflicts with historical and judicial precedent, which maintains that the Act is a wartime authority, not a tool for routine immigration enforcement.
Conditions Required for Invoking the Act
Under U.S. law, the president’s power to invoke the Alien Enemies Act requires either a formal declaration of war by Congress or an imminent threat to U.S. territory. This limits the president’s unilateral power, ensuring a measure of democratic debate and oversight before the Act can be enforced. However, the president does hold discretionary authority to address immediate threats, potentially allowing Trump or any president to claim an “invasion” as a pretext for invoking the law. This raises concerns about potential overreach, especially when terms like invasion are applied loosely to non-military phenomena like illegal immigration.
Judicial and Legislative Checks on Abuse
Courts have traditionally upheld presidential authority under the Alien Enemies Act, even permitting its extended use after wars have ended. However, the concept of a political question doctrine complicates the judiciary’s role. This doctrine discourages courts from intervening in political matters that fall within the purview of the executive or legislative branches. For example, in 1948, the Supreme Court upheld the extended internment of German immigrants after World War II under President Truman, effectively deferring to the president’s authority on issues of war termination.
This judicial reluctance presents a challenge for those seeking to curb any peacetime misuse of the Act. Nevertheless, the Supreme Court’s 1962 decision in Baker v. Carr allows for judicial intervention in cases where there is an “obvious mistake” or misuse of power. This provides a potential avenue for challenging unconstitutional applications of the Alien Enemies Act.
Constitutional Concerns Raised by the Brennan Center
The Alien Enemies Act raises serious constitutional concerns, notably regarding discrimination and due process rights under the Fifth Amendment. The law’s provisions allow for discrimination based on nationality and ancestry, potentially targeting individuals without any evidence of disloyalty or illegal activity. The Act's application to "natives" — those born in an enemy nation but who may have renounced citizenship — reflects an outdated conflation of ancestry with disloyalty.
Another constitutional issue relates to indefinite detention. During World War II, some immigrants were interned for over a decade under the Alien Enemies Act, even if they had committed no crime. Such indefinite detention contradicts the Supreme Court's 2001 Zadvydas v. Davis decision, which prohibits indefinite detention without trial, except in extraordinary circumstances like active wartime.
Legislative Efforts to Repeal the Act
Recognising these constitutional concerns, some members of Congress have introduced a repeal bill, the Neighbours Not Enemies Act, led by Rep. Ilhan Omar and Sen. Mazie Hirono. This bill aims to prevent misuse of the Alien Enemies Act and protect the rights of immigrants. Advocates for repeal argue that modern immigration, intelligence, and criminal laws already provide ample tools to address espionage and sabotage, making the Alien Enemies Act redundant and unnecessarily broad.
Modern-Day Relevance and Security Concerns
When first enacted, the Alien Enemies Act was a pragmatic response to the absence of robust immigration, criminal, and intelligence laws in the United States. Today, however, the U.S. has extensive legal and operational infrastructure to address national security threats without relying on identity-based detentions and deportations. Critics argue that in the 21st century, there is no practical need for a law that potentially infringes on civil liberties and targets individuals based on nationality or ethnicity.
The Alien Enemies Act: A Relic of a Bygone Era?
The Alien Enemies Act stands as a symbol of an era when identity-based internment was considered a necessary response to wartime threats. But with a diverse and evolving population, the stakes of reviving such legislation are high. Using the Act for non-military immigration enforcement would mark a fundamental shift in its purpose and expose the U.S. to accusations of discrimination and abuse of power.
Donald Trump is anticipated to mobilise agencies across the US government to push for record levels of immigrant deportations, building on efforts from his first term to utilise all available resources and exert pressure on “sanctuary” jurisdictions to cooperate, according to six former Trump officials and allies. In a dramatic comeback, Trump defeated Democrat Kamala Harris , with Edison Research projecting the win and Trump declaring he had received an “unprecedented and powerful mandate.” Supporters, some of whom could join his administration, expect Trump will call on entities from the military to diplomats abroad to turn his campaign pledge of mass deportations into reality. His plans involve collaborating with Republican-led states and using federal funding as leverage over resistant areas.
Trump’s return to the White House is marked by a promise of a broad immigration crackdown, with his running mate, JD Vance, estimating an operation that could lead to the deportation of one million people per year. Immigration advocates warn that this approach would be costly, divisive, and inhumane, causing family separations and affecting communities. Edison Research exit polls indicate a divide among voters: 39% believe most immigrants in the US illegally should be deported, while 56% favour allowing them to apply for legal status.
During Trump’s previous term, he faced challenges in scaling up deportations. Despite this, President Biden reportedly deported more immigrants in fiscal year 2023 than Trump did in any year of his term, according to government data. However, a large-scale deportation initiative targeting millions would necessitate significantly more officers, detention facilities, and immigration court judges. The American Immigration Council has estimated that deporting 13 million undocumented immigrants would cost approximately $968 billion over a decade.
Tom Homan, a former acting director of Immigration and Customs Enforcement (ICE), anticipated to join Trump’s team, remarked that the scale of deportations would depend on the availability of officers and detention capacity. The incoming administration might benefit from experience gained in Trump’s first term, though it may encounter pushback from ideologically opposed employees, including those screening asylum seekers.
The American Civil Liberties Union (ACLU) and other immigrant advocacy groups are preparing for court battles if Trump once more tests his legal authority. Lee Gelernt, an ACLU attorney who led opposition to Trump’s family separation policy, noted that more than 15 immigration-focused lawyers within the organisation have been preparing for Trump’s potential return, with plans to increase resources and coordination.
Trump’s second term could see a more assertive approach from the State Department, a factor in his plans that struggled to gain momentum during his first term due to issues with other countries accepting repatriated citizens. Some Trump allies, like former Deputy Homeland Security Secretary Ken Cuccinelli, argue that stronger State Department appointees will be crucial to advancing Trump’s immigration goals.
Around half of ICE’s 21,000 employees are part of Homeland Security Investigations (HSI), which focuses on transnational crime rather than immigration enforcement. Some Trump supporters believe HSI would need to dedicate more resources to immigration matters.
Stephen Miller, Trump’s immigration adviser during his first term, suggested that cooperative states might deploy National Guard troops to resistant states to assist with deportations, a move likely to spark legal battles. Trump also plans to invoke the Alien Enemies Act of 1798, allowing rapid deportation of alleged gang members. While this action would likely face legal challenges, Trump’s supporters believe it could be a potent tool, though critics warn it might lead to indefinite detention without judicial review.
Some allies, like former DHS official George Fishman, caution against overpromising, noting that using this statute could require proving foreign government involvement in sending immigrants to the US. The ACLU and others have raised concerns about the possible misuse of the law, which was previously invoked during the War of 1812, World War I , and World War II .
Explained: The Alien Enemies Act Trump Wants to Use to Deport People
At his recent rally in Macon, Georgia, Donald Trump continued to capture headlines with his remarks on immigration, signalling his intention to invoke the Alien Enemies Act of 1798. This law, a relic from America’s early years, was notably used to detain and deport immigrants during major conflicts like the War of 1812 and World War II. Trump’s rally rhetoric called attention to his plans to leverage this obscure legislation to address undocumented immigration, sparking considerable debate around its historical usage and constitutional implications.
What is the Alien Enemies Act?
The Alien Enemies Act, part of the Alien and Sedition Acts of 1798, was originally designed as a wartime measure. It grants the president the authority to detain or deport nationals of a hostile foreign country, even without a trial, during times of declared war or if there is a credible threat of invasion or “predatory incursion” against the United States. Though initially intended to address foreign espionage and sabotage, it has been invoked in ways that can disproportionately affect immigrants who are legally in the United States. Trump’s pledge to use this law underscores its capacity to be adapted for contemporary political aims, albeit with significant legal and ethical questions.
Historical Context and Past Use of the Alien Enemies Act
The Alien Enemies Act has been deployed three times in history, each instance coinciding with major wars involving the United States. During the War of 1812, World War I, and World War II, the law facilitated restrictions, detentions, and even deportations targeting immigrants from enemy nations, including German, Austro-Hungarian, Japanese, and Italian nationals. Most notoriously, this law was used to intern Japanese Americans during World War II, an act for which the U.S. government later apologised. These instances illuminate the Act's power but also serve as cautionary tales about potential civil rights abuses when fear drives immigration policy.
Trump’s Interpretation: A New Context for an Old Law
Trump’s remarks reveal a notable shift in the interpretation of “invasion” and “predatory incursion.” While traditionally associated with large-scale military threats, some contemporary politicians, including Trump, argue for a non-literal interpretation that could encompass undocumented migration or cross-border drug trafficking. Proponents of this approach view the Alien Enemies Act as a powerful tool to expedite deportations and circumvent traditional immigration laws. However, such an interpretation conflicts with historical and judicial precedent, which maintains that the Act is a wartime authority, not a tool for routine immigration enforcement.
Conditions Required for Invoking the Act
Under U.S. law, the president’s power to invoke the Alien Enemies Act requires either a formal declaration of war by Congress or an imminent threat to U.S. territory. This limits the president’s unilateral power, ensuring a measure of democratic debate and oversight before the Act can be enforced. However, the president does hold discretionary authority to address immediate threats, potentially allowing Trump or any president to claim an “invasion” as a pretext for invoking the law. This raises concerns about potential overreach, especially when terms like invasion are applied loosely to non-military phenomena like illegal immigration.
Judicial and Legislative Checks on Abuse
Courts have traditionally upheld presidential authority under the Alien Enemies Act, even permitting its extended use after wars have ended. However, the concept of a political question doctrine complicates the judiciary’s role. This doctrine discourages courts from intervening in political matters that fall within the purview of the executive or legislative branches. For example, in 1948, the Supreme Court upheld the extended internment of German immigrants after World War II under President Truman, effectively deferring to the president’s authority on issues of war termination.
This judicial reluctance presents a challenge for those seeking to curb any peacetime misuse of the Act. Nevertheless, the Supreme Court’s 1962 decision in Baker v. Carr allows for judicial intervention in cases where there is an “obvious mistake” or misuse of power. This provides a potential avenue for challenging unconstitutional applications of the Alien Enemies Act.
Constitutional Concerns Raised by the Brennan Center
The Alien Enemies Act raises serious constitutional concerns, notably regarding discrimination and due process rights under the Fifth Amendment. The law’s provisions allow for discrimination based on nationality and ancestry, potentially targeting individuals without any evidence of disloyalty or illegal activity. The Act's application to "natives" — those born in an enemy nation but who may have renounced citizenship — reflects an outdated conflation of ancestry with disloyalty.
Another constitutional issue relates to indefinite detention. During World War II, some immigrants were interned for over a decade under the Alien Enemies Act, even if they had committed no crime. Such indefinite detention contradicts the Supreme Court's 2001 Zadvydas v. Davis decision, which prohibits indefinite detention without trial, except in extraordinary circumstances like active wartime.
Legislative Efforts to Repeal the Act
Recognising these constitutional concerns, some members of Congress have introduced a repeal bill, the Neighbours Not Enemies Act, led by Rep. Ilhan Omar and Sen. Mazie Hirono. This bill aims to prevent misuse of the Alien Enemies Act and protect the rights of immigrants. Advocates for repeal argue that modern immigration, intelligence, and criminal laws already provide ample tools to address espionage and sabotage, making the Alien Enemies Act redundant and unnecessarily broad.
Modern-Day Relevance and Security Concerns
When first enacted, the Alien Enemies Act was a pragmatic response to the absence of robust immigration, criminal, and intelligence laws in the United States. Today, however, the U.S. has extensive legal and operational infrastructure to address national security threats without relying on identity-based detentions and deportations. Critics argue that in the 21st century, there is no practical need for a law that potentially infringes on civil liberties and targets individuals based on nationality or ethnicity.
The Alien Enemies Act: A Relic of a Bygone Era?
The Alien Enemies Act stands as a symbol of an era when identity-based internment was considered a necessary response to wartime threats. But with a diverse and evolving population, the stakes of reviving such legislation are high. Using the Act for non-military immigration enforcement would mark a fundamental shift in its purpose and expose the U.S. to accusations of discrimination and abuse of power.
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