In announcing his “Operation Aurora,” former President Donald Trump has suggested that he may use the Alien Enemies Act (AEA) of 1798 to crackdown on “every illegal migrant criminal network operating on American soil.” The plan to begin mass deportations is certainly popular with the public, according to polling. However, without a declaration of war, he will likely have to look to alternative statutory vehicles for a peacetime operation. There are novel arguments that could be made in federal court, but they run against the presumed meaning of critical terms under the law. The odds do not favor the government in the likely challenges.
This is not the first time that the Trump campaign has invoked the AEA. Last year, the campaign cited the law as giving it the power to “remove all known or suspected gang Members, drug dealers, or Cartel Members from the U.S.”
The AEA has only been used three times and each time we were in a declared war: the War of 1812, World War I, and World War II. It is a law that became infamous in its use to put Japanese, German, and Italian civilians in internment camps during World War II.
In DeLacey v. United States in 1918, the Ninth Circuit wrote that:
The first reported case arising under the [AEA] is [by the Pennsylvania Supreme Court in] Lockington’s Case [in 1814] … Lockington … had refused to comply with the executive order of February 23, 1813, requiring alien enemies who were within 40 miles of tidewater to retire to such places beyond that distance from tidewater as should be designated by the marshals. He was arrested, and on petition for habeas corpus attempted to test the legality of his imprisonment. Chief Justice Tilghman said of the [AEA]:
“It is a provision for the public safety, which may require that the alien should not be removed, but kept in the country under proper restraints. … It is never to be forgotten that the main object of the law is to provide for the safety of the country from enemies who are suffered to remain within it. In order to effect this safety, it might be necessary to act on sudden emergencies. … The President, being best acquainted with the danger to be apprehended, is best able to judge of the emergency which might render such measures necessary. Accordingly, we find that the powers vested in him are expressed in the most comprehensive terms.”
The law’s sweeping language makes it ripe for abuse. Pennsylvania Supreme Court Justice Brackenridge in Lockington’s Case (1814) observed that under the AEA “the President would seem to be constituted, as to this description of persons, with the power of a Roman dictator or consul, in extraordinary cases, when the Republic was in danger, that it sustain no damage: ne quid detrimenti respublica capiat.”
However, the AEA’s only limiting language is found in the triggering language for those powers:
“Whenever there is a 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, and the President makes public proclamation of the event…”
In Ludecke v. Watkins, 335 U.S. 160 (1948), Supreme Court Justice Felix Frankfurter wrote a supportive decision of the presidential authority under the AEA on when the powers expired, but not when the powers begin:
“And so we reach the claim that, while the President had summary power under the Act, it did not survive cessation of actual hostilities. This claim in effect nullifies the power to deport alien enemies, for such deportations are hardly practicable during the pendency of what is colloquially known as the shooting war. Nor does law lag behind common sense. War does not cease with a cease-fire order, and power to be exercised by the President such as that conferred by the Act of 1798 is a process which begins when war is declared but is not exhausted when the shooting stops.” (emphasis added).
This broad granting of authority under the AEA is obviously a great attraction for presidents who have rarely hesitated to use the maximal levels of their powers. However, the threshold requirement of a declared war has proven the limiting element and it is telling that the law has been used only three times by presidents.
It can be used for limits that fall short of deportation or internment. For example, President Woodrow Wilson barred alien enemies during World War I from possessing firearms and explosives, coming within a half a mile of a military facility or munitions factory, residing in certain areas, possessing certain communications equipment, and publishing certain types of materials.
Trump can argue that governments such as Venezuela are using the open border to flood the nation with migrants, including those released from their prisons. That does offer a possible avenue under the claim that a formal declaration, but it would also require a broad reading of the term “invasion” or “incursion.” The problem is that the clear thrust of the law was a conventional war. The question is whether federal courts are willing to adopt a very broad interpretation of such terms despite the presumed legislative intent behind the law at the time of its passage.
The greatest hope for a new Trump Administration would be to argue that the use of the law is a “political question” and thus inappropriate for judicial review. That is often a powerful argument that leads to deference of the courts to the political branches.
Yet, even Baker v. Carr, the Supreme Court’s opinion recognizing the doctrine, reserved the possible use of judicial review to address “an obvious mistake” or “manifestly unauthorized exercise of power.” Courts have declined to use that reservation but there are strong arguments that this is a matter of statutory interpretation and not a matter left to the political discretion of the legislative or executive branches.
Politicians often speak of national emergencies as “wars” but there remains a difference between the colloquial and the legal. A war on illegal immigration is not the same as a war on the Axis powers. The former can be declared in a campaign while the latter requires a declaration of Congress.
None of this means that a president would not have the authority for mass deportations or that Congress could not pass additional such authority. The massive influx of millions of undocumented persons is now a national crisis with growing national security, economic, and social costs for the nation. The numbers are certainly analogous to an “invasion” for cities and states grappling with the wave of migrants. However, the AEA in my view is a poor vehicle for such a program.
Accordingly, I remain skeptical that such a massive program would survive judicial review. Any effort to do so would face an emergency demand for a preliminary injunction. As a threshold legal question, it could move fairly quickly through the courts and we could have an answer to a question that has lingered for over two centuries.
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