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.
Are you saying that the Biden/Harris Administration has the authority to bring in tens of millions of illegals and deposit them throughout the country AND force us to support them but the President doesn’t have the authority to cashier them back out of the country? That seems unlikely. What authority does the President who allows them in also have to expel them? Don’t they take the Oath of Office: “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against ***all enemies, foreign and domestic***…”
No, he’s not saying that. He is saying that the Alien Enemies Act cannot be used to do it.
So what is the correct way to deport them, or what will we have to do to deport them? Do we need a new law, or what? There has to be a way.
Good luck… DJT couldn’t handle the logistics to get hundreds of rally attendees back to their cars!
A deportation hearing
“Alien Enemies Act” is, very obviously, campaign rhetoric. More, in making such a statement Trump is also initiating a conversation here. And if it were me having thus initiated, and awaited the known response (Turley, example), I would simply declare war on Mexico. Look, if GW can have his Iraq (in turning from “Afghani Enduring Freedom” to “Iraqi Enduring Freedom,” while discarding ye old “stability” paradigm, and Obama can have his Libya, then certainly Trump can have his Mexico. And therein lies the rub, if war is necessary to lawful compliance, well, so be it. And I would even take it a step further, to ensure lasting result, by widening the border due south one hundred miles.
JD Vance rips Martha Radditz a new one:
https://x.com/DrewHLive/status/1845465357731103010
BREAKING: JD Vance rebukes ABC News for playing down the reality of Venezuelan Illegal Alien Gangs taking over American Apartment complexes
(It’s about time these media propagandists & liars get a royal smackdown)
At last, you have discovered something that you feel is not right, about that very sick man.!!!
Praise The Lord.!!!!
You are referring to Joe Biden, of course.
In other news, Tucker Tries To Get Job At Fox News Back By Dressing Up As Hot Blonde. https://babylonbee.com/news/tucker-tries-to-get-job-at-fox-news-back-by-dressing-up-as-hot-blonde
J
Thanks for another, sober, legal and historically based analysis.
I suggest Trump could ask citizens to step forward for training and become impaneled to process the backlog of migrant hearings. I believe many citizens would be pleased to help. Each migrant would get an appearance to present their case for asylum of otherwise and for their status to be decided by citizen jurors. Overall, the aim is to clear the backlog of migrant cases. Trump should consider this approach.
I’ve figured out the only thing Kamala is good at: she’s one heck of a Maya Rudolph impersonator.
Jonathan: I agree. DJT can’t use the AEA to deport the undocumented. But do you think a sociopathic narcissist and criminal would let a mere statute stand in his way?
DJT is a cunning manipulator. His whole campaign and platform is based on playing upon the fears of his MAGA supporters and some others– that immigrants (undocumented or those her legally) are somehow a “threat” to our very existence. DJT plays into and exploits those fears by calling immigrants “murderers” and “rapists” who will break into out homes and kill us in our beds. He even convinces his supporters that immigrants can’t control their criminal impulses because “it’s in their genes”.
Now if anybody else said these kinds of crazy and insane things we would conclude they needed help in a mental institution. But with DJT every crazy thing he says is “normalized”. The crazier he becomes, and we can see this every day, the more his supporters eat it up. DJT is not only a threat to our Democracy with his attempts to sow chaos and discord but he is a threat to our sanity as well!
Liberal tears are so much fun on a Saturday evening.
What else would Dennis be doing on a Saturday evening?
Could Trump use the AEA to deport people ? He could should he attempt to, and after the absolutelyu certain challenges the courts decide that he can.
I doubt that Trump will prevail in court. If he does not, he will rant and rail at the courts and conform his actions to the court decisions.
Trump won in court as president far more than he lost – even when those like you said he could not win.
But when he lost he acted within the constraints of the court. ‘
I think the court get the decisions on the Commerce Department Census WRONG, that Trump was clearly allowed to restore to the Census questions that had been there is the past.
But despite being right when the court was wrong – Trump did as the court directed.
Conversely Democrats do NOT.
The Immigration laws in the US are clear – you enter illegally, when you are caught you get deported – immediately.
Obama did not follow the law, Biden has not followed the law.
If you do not like the law – change it. Democrats tried, The people and their representatives rejected those changes.
They also erejected the idea that those or possibly even any changes are needed.
They want a president that follows the law.
You rant and rave – but the evidence is that Trump and his advisors will make their own determination on the AEA, and if they decide to use it the courts will get the final word.
Personally I do not beleive Trump is going to use the AEA.
It is both practically and politically impossible to get rid of what some studies are now saying is 21M illegals that have entered the country under Biden/Harris. 90%+ of them are not going anywhere.
The most important change under Trump will be that the flow of illegals into the country will slow dramatically and rapidly.
Trump will follow existing immigration law. How do we know ? because he did as president.
I do not beleive that Trump will try to use the AEA – because the resources do not exist to track down millions of illegals an deport them.
We will See ICE focused on getting the worst of the worst out – that will keep ICE very busy. There is alot of worst of the worst who have been allowed in under Biden.
If the entire US military was mobilezed under the AEA to deport illegal immigrants – we would STILL not have the resources to do so.
Trump is not going to start a fight that he loses even if he wins.
Futher – even though the overwhelming majority of americans want these illegal immigrants gone.
And they will be cheering as criminals are deported to whatever $hithole they came from,
And they will be cheering as the Border Wall is built.
Trump will lose them if the media starts running video of families that have done nothing wrong except enter the country illegally being deported. Trump is not stupid. No one is doing that.
It is not that the majority of americans do not want illegals gone. It is that once they are here we want to make exceptions for every story that grabns at our heart. Criminals Dont – but the same families that we will keep from getting in with a wall, We shed tears when men with guns seek to remove them. It does not mke logical sense, but it is still emotionally true.
And Trump is very good at reading those things.
“But do you think a sociopathic narcissist and criminal would let a mere statute stand in his way?”
Yes, because unlike Biden and Obama Trump has followed the law and the courts.
Honestly I do not even think he will Try – because even if the courts allow him to, the resources do not exist, and the backlash would be enormous.
But lets say it wasn’t – If the courts said NO, he would have to go to congress.
There is no evidence Trump has ever issued and illegal or unconstitutional order as President – Though Both Obama and Biden have. ‘
Nor is there any reason to expect that those in the government – even Trump hand picked people would disobey the courts and obey Trump.
That only happens in your head.
“DJT is a cunning manipulator. His whole campaign and platform is based on playing upon the fears of his MAGA supporters and some others– that immigrants (undocumented or those her legally) are somehow a “threat” to our very existence. DJT plays into and exploits those fears by calling immigrants “murderers” and “rapists” who will break into out homes and kill us in our beds. He even convinces his supporters that den immigrants can’t control their criminal impulses because “it’s in their genes”.”
Dennis – lets say you are right – which is really stupid. So Trump tries to use the AEA
Either the courts allow him to – what does he do next ?’
Do you think he is sending the army to deport illegals ? The national guard ?
Do you think the would be a huge backlash to 4 million deportations a year ? Do you even think 4 million deportations is physically possible ?
Are some of these illegal immigrants criminals ? Are some of them going to commit crimes – absolutely. Large numbers of them will.
But far larger numbers wont. Most of them are not bad persons. They are just persons who lost life lottery being born wherever they are, and won it when they were able to cross the border easily. Accross the world there are atleast 3/4 of a nillion people who would come to the US if they could easily. Everyone does not win lifes lottery. Americans have.
We do not expect lottery winners to give away all their winnings, or to allow others to take them.
Life is not always fair – get over it.
If you can’t – then start taking in illegals yourself.
Put your money where your mouth is.
“Now if anybody else said these kinds of crazy and insane things we would conclude they needed help in a mental institution. But with DJT every crazy thing he says is “normalized”. The crazier he becomes, and we can see this every day, the more his supporters eat it up. DJT is not only a threat to our Democracy with his attempts to sow chaos and discord but he is a threat to our sanity as well!”
Using the AEA is not crazy. There is probably about a 40% chance that the courts would allow Trump to.
40% is not good, but it is not crazy.
Absolutely the heavily edited spliced and forged things Trump allegedly said are crazy. But what he has actually said – is not.
Not only do we know he did not say the things you claim.
Even if we did not, we would know because as president he did NOT do any “crazy” things. Though Biden has.
He may have done things you do not like.
But guess what – disagreeing with you does not make anyone crazy,
Odds are it makes them rational.
“I do not beleive that Trump will try to use the AEA – because the resources do not exist to track down millio ns of illegals an deport them.”
For the same reason (resources), we cannot deport; many illegals cannot stay if we do the same thing to them and deny them resources such as welfare benefits.
“DJT can’t use the AEA to deport the undocumented.”
But Biden can use the “Heroes Act” to cancel billions of dollars in student loans, to circumvent congress, and to force the rest of us to pay for those “cancelled” loans?
We wouldn’t think they’re crazy. We’d thank them for raising the issue, attempting to do something about it. Then legitimate courts, legal minds and journalists, steer them in a more reasonable, effective and legal direction to get it done.
DEPORT!
These illegals have NO RIGHT to be here.
Biden and Harris are BREAKING our LAWS and FACILITATING an INVASION of our country.
Double Standards Dennis McIntyre; channeling his virulent sociopathic hatred again: But do you think a sociopathic narcissist and criminal would let a mere statute stand in his way?
First Question: Why don’t you tell us who’s actually running the country while The Big Guy sociopathic narcissist and criminal is spending most of his time engaged in Testicle Tanning sessions on the beach near his mansion bought with bribes? Who’s actually got the codes to the nuclear football, Dennis? the smartest man The Big Guy knows: The First Felon Crackhead Son? Or the First Babysitter Jill?
Remember your demands for using the 24th Amendment just a few short years ago? Double Standards Dennis says that no longer applies?
To your point/channeling Dennis, that psycho Bolshevik Barack, the sociopathic narcissist of The Teachable Moment lectures to America, who first criminally paid foreign spies from Russia and the UK to write his “Russia Dossier”. Then ordered his Attorney Generals and FBI Directors to perjure themselves to FISA courts to obtain unlawfal FISA warrants (please don’t lie to us that they did that on their own without consulting Bolshevik Barack). After four years of allowing Hillary Clinton to send classified materials over illegal electronic devices and servers, while knowing her communications were being intercepted by adversarial nations.
No, Dennis, Bolshevik Barack never let criminal statutes stand in his way. Nor the truth.
Or maybe Dennis, you’re channeling The Big Guy, Mr. Ten Percent, the sociopathic narcissist and criminal who makes every story about himself – even if he has to lie to make it about himself. Like telling the grieving parents and wives of Gold Star Families that his own corrupt State Attorney General son covering for Biden family crime was killed in combat in Afghanistan – and then after that killed again in Iraq.
The same criminal whose partner Bolshevik Barack covered up over 150 reports from banks reporting bribes and money laundering regarding then Vice President Big Guy. The same unindicted criminal whose hand picked Special Counsel said he’d been a serial crime wave of felonies while in office over four decades – but he would not indict The Big Guy who held his job in his hands, because an Ouija Board had told him no jury in America would convict The Big Guy.
President Daddy-Daughter Inappropriate Incest Showers never let criminal statutes (nor SCOTUS repeatedly telling him “you can’t do that”) regarding incest, stealing classified documents, taking bribes, money laundering, influence peddling, or directing public officials to perjure themselves EVER stand in his way.
Y’know Dennis, the crazier your lying, posturing, and channeling gets… the less credible you become and normal Americans are far less likely to even pay much attention to your vicious, pathological lying on behalf of either Biden White house Crime.
Mostly we’re here to jeer, mock, and otherwise ridicule your contemptible lying sessions that begin with you pretending that Professor Turley and you are friends on a first name basis.
You are either paid to use Professor Turley’s blog as your personal political blog – or you’re just a masochist who loves being humiliated, jeered, excoriated, mocked, and ridiculed.
Which one is it, you Cheap Fake Soviet Pravda American?