What Is the Alien Enemies Act That Trump Said He Will Use?

The Alien Enemies Act of 1798, one of America’s oldest and most controversial laws, has been thrust back into the spotlight by former President Donald Trump. In his campaign, Trump has vowed to use this centuries-old statute to expedite the deportation of undocumented immigrants if he returns to the White House.

His proposed approach includes targeting migrant criminal networks and possibly cracking down on sanctuary cities, aiming to address the issue through a revived federal initiative called “Operation Aurora.” But what does the Alien Enemies Act actually allow, and how feasible is Trump’s plan to use it in today’s legal and political climate?

What Is the Purpose of the Alien Enemies Act?

The Alien Enemies Act was part of the Alien and Sedition Acts, a group of four laws passed in 1798 under President John Adams as tensions with France escalated. This group of laws aimed to strengthen the government’s control over non-citizens and protect national security but was also deeply divisive, as it limited civil liberties and imposed significant restrictions on free speech critical of the government.

The Alien Enemies Act specifically permits the president to take action against non-citizens from countries considered hostile to the United States during wartime. Under its original language, the president can detain, relocate, or deport any male citizen over 14 from an enemy country if Congress has declared war.

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According to the act, if a foreign nation is deemed a threat, the president has the authority to order the restraint or deportation of enemy nationals. This broad and largely discretionary power has since been extended to include women and, while it is rarely invoked, remains active U.S. law.

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During its passage, the United States was nearly at war with France, and there were significant concerns about internal security. The act allowed authorities to monitor, and potentially remove, individuals believed to be working against American interests or collaborating with France. This broad power to deport non-citizens without trial is what made the law a tool for national security but also a point of contention for civil liberties.

When Has the Alien Enemies Act Been Used?

Historically, the Alien Enemies Act has been implemented only a handful of times, each instance tied to a major conflict where the U.S. was directly involved in war. Over time, it has been invoked three main times, in ways that dramatically impacted immigrant communities within the U.S.

War of 1812:

During the War of 1812, the Alien Enemies Act was used against British nationals living in the United States. They were required to report information such as their age, length of stay, residence, family members, and whether they had applied for naturalization. Many British nationals faced restrictions, and the act ensured that any perceived threats from British citizens within U.S. borders were tightly controlled.

World War I:

During WWI, President Woodrow Wilson invoked the act against nationals of the Central Powers, including Germans, Austro-Hungarians, Ottomans, and Bulgarians. This resulted in more than 6,000 Germans being placed in internment camps.

Additionally, the U.S. Marshals registered over 480,000 German nationals and arrested 6,300 individuals between the declaration of war and the 1918 armistice. Many of these people faced internment and other restrictions as a measure to safeguard against potential security risks during the war.

World War II:

President Franklin D. Roosevelt invoked the act after Japan’s attack on Pearl Harbor, resulting in restrictions on Japanese, German, and Italian nationals living in the United States. Roosevelt’s administration required individuals from these countries to register with the government, and many of them were interned.

By the war’s end, over 31,000 individuals, including some Jewish refugees from Nazi Germany, had been detained in internment camps, while others were repatriated. While most of the detained individuals were non-citizens, the internment of Japanese Americans (many of whom were citizens) occurred under separate policies, reflecting the broad reach of government wartime powers and its often-discriminatory implementation.

Despite its original purpose, the Alien Enemies Act hasn’t been used since WWII. In part, this is due to changing definitions of warfare. Since 1942, the U.S. has engaged in multiple conflicts, but Congress hasn’t declared war formally. As the nature of modern conflicts has evolved into more complex, undeclared conflicts, the act has gradually fallen out of regular use, even as it technically remains a viable legal tool.

How Realistic Is Trump’s Proposal to Use the Act?

Trump’s recent invocation of the Alien Enemies Act has raised questions about its relevance and feasibility. While the law remains on the books, its use in today’s legal and political climate would be unprecedented, especially without a formally declared war.

Legal Hurdles and Lack of a War Declaration:

The Alien Enemies Act explicitly ties the president’s authority to detain or deport individuals to a wartime context, requiring Congress to declare war against a foreign nation. Since the U.S. hasn’t declared war since WWII, it is unclear if the act can be applied without this formal declaration.

Some legal experts, including Professor Steve Vladeck of Georgetown University, argue that it would be difficult to redefine immigration issues as an “invasion” that falls under the scope of this law. Given this requirement, Trump would face significant legal obstacles if he attempted to enforce the Alien Enemies Act without a formal war declaration by Congress.

Public and Judicial Opposition:

The public and judicial perspective on immigration and wartime powers has evolved significantly since WWII. Notably, the 1944 Supreme Court ruling in Korematsu v. United States, which justified the internment of Japanese Americans, has been widely criticized and formally condemned by the U.S. government.

Congress later issued reparations to surviving Japanese Americans, acknowledging the injustice of their internment. As legal standards around civil liberties and equal protection have become stricter, many experts, including legal scholar Katherine Yon Ebright from the Brennan Center, believe that courts would be more likely to scrutinize any attempt to invoke the act today. This could make it challenging for a president to use the Alien Enemies Act without facing immediate legal challenges.

Operational and Funding Constraints:

Immigration enforcement in the U.S. already faces significant challenges, including limited resources for tracking and deporting undocumented immigrants. The federal government has struggled with funding and capacity issues, making it difficult to enforce immigration laws at the scale Trump suggests. His previous administration faced similar challenges despite having authority under other immigration statutes.

Congress has yet to pass comprehensive immigration reform, partly due to ongoing political divides. Trump’s emphasis on invoking an 18th-century law rather than modernizing current immigration policies may signal his approach to campaign rhetoric rather than a viable strategy for systemic change.

Potential Legislative Pushback and Repeal Efforts:

Following Trump’s recent statements, some lawmakers, such as Rep. Ilhan Omar and Sen. Mazie Hirono, have renewed efforts to repeal the Alien Enemies Act through a bill known as the “Neighbors Not Enemies Act.”

This legislation seeks to remove the law from the books entirely, arguing that it promotes xenophobic policies that do not align with modern values. Although previous repeal efforts have failed, Trump’s proposal may bring new attention to the act and could result in a push from Congress to reconsider its relevance and potential misuse.

While the Alien Enemies Act theoretically gives the president a tool to deport individuals from enemy countries, its application in a modern immigration context remains unlikely without significant reinterpretation.

Courts and legislators would almost certainly intervene to restrict its use, especially given the act’s original wartime focus and the evolution of constitutional protections. Even among anti-immigration advocates, there is recognition that invoking this act would likely be seen as a legal stretch.

As former President Trump campaigns on a platform of renewed immigration crackdowns, his proposed reliance on the Alien Enemies Act of 1798 highlights a complex debate over immigration law, national security, and presidential authority.

The Alien Enemies Act has a long history of being used in times of declared war to detain and deport individuals from enemy nations. However, with no declared war since WWII and significant legal and operational hurdles, Trump’s proposed use of this act faces a highly uncertain path.

Even if Trump were to reinvoke this centuries-old statute, he would likely face immediate legal challenges, and Congress might move to repeal the law altogether. While some see the Alien Enemies Act as a powerful, albeit outdated, tool for addressing threats within U.S. borders, others view it as an unnecessary and potentially harmful measure with little relevance in today’s world.

Whether or not Trump’s proposal gains traction, it underscores the need for updated immigration policies that address modern challenges without resorting to laws from the distant past.