What to know about the wartime authority Trump could use in mass deportations

The Alien Enemies Act has been used three times since its creation, each involving a declared war: the War of 1812, World War I, and World War II.

Ivana Saric

President Trump plans to invoke a centuries-old wartime authority to accelerate mass deportations of undocumented immigrants with little to no due process.

Why it matters: Trump floated invoking the law on the campaign trail. Its potential use comes as some of his administration members have become frustrated with the slower than expected pace of deportations.

• Trump could invoke the Alien Enemies Act of 1798 as soon as Friday.
• Since the act is not part of immigration law, it would allow the government to detain and deport people without court hearings or asylum interviews.
• Its most infamous use came during World War II, when it was used to help justify Japanese internment.
• Reality check: The U.S. is not currently at war with any country.

The big picture: Despite promising to carry out the “largest deportation program” in U.S. history, the pace of arrests of undocumented immigrants under Trump has appeared to lag behind President Biden’s.

• The Trump administration has faced lack of funding and infrastructure hurdles, and even looked to hold detainees in Guantanamo Bay — a plan that has faced legal challenges.
• If Trump were to invoke the Alien Enemies Act during peacetime it would be a “staggering abuse,” sure to wind up in court, per the Brennan Center for Justice.

Zoom in: The president has suggested the law it could be used to target immigrants with alleged ties to criminal gangs.

• Less than 1% of immigrants deported last fiscal year were kicked out of the U.S. for crimes other than immigration violations, Axios’ Russell Contreras has reported.

What is the Alien Enemies Act of 1798?

The Alien Enemies Act allows the government to detain and remove immigrants when there is “a declared war between the United States and any foreign nation or government.”

• It could also apply in cases when a foreign government has “perpetrated, attempted, or threatened” an invasion or “predatory incursion” of the U.S.
• While the law can’t be used to detain U.S. citizens, the U.S.-citizen children of immigrants could be affected.
• Trump border czar Tom Homan, when asked how deportations could be carried out without separating families, said in October that families would be deported together.

When has the Alien Enemies Act been used?

Only three times since its inception, during the War of 1812, World War I and World War II.

• In these instances, the act has been “wielded against immigrants who have done nothing wrong, have evinced no signs of disloyalty, and are lawfully present in the United States,” according to the Brennan Center for Justice.
• During both World Wars, Presidents Woodrow Wilson and Harry Truman used it to justify the “detentions, expulsions, and restrictions targeting German, Austro-Hungarian, Japanese, and Italian immigrants based solely on their ancestry,” per the center.

How has Trump laid the groundwork for its use?

Trump on his first day in office issued an executive order instructing his administration members to prepare for the act’s potential invocation.

• While the Constitution gives Congress the power to declare war, the president has the authority to respond to sudden attacks, like predatory incursions or invasions, per the Brennan Center for Justice.
• Trump has already begun making the case that such an incursion or invasion is already underway.
• His administration has declared some Latin American cartels to be terrorist organizations, and Trump has baselessly suggested that one of them — Tren de Aragua — has already taken over a Denver suburb.
• Many Republicans have also echoed Trump’s language referring to illegal immigration as an “invasion.”

Go deeper: Trump plans to use 1798 law in mass deportations