Former President Donald Trump declared bold promises at his recent rallies across the nation. Trump’s booming voice made it clear that if he regains the presidency, he will expel millions of undocumented migrants from the United States.
Trump, along with his advisors, asserts that state and local law enforcement, the military, and U.S. Immigration and Customs Enforcement (ICE) will play crucial roles in what he proclaims will be “the largest deportation in American history,” while also invoking “wartime powers.”
Approximately 11 million or more undocumented immigrants reside in the United States, comprising about 3% of the total population, a CBS news article reported. The majority, approximately 80% have established their residence in the country for a decade or longer. Trump’s mass deportation campaign promise warrants scrutiny.
“If you’re in the country illegally, you better be looking over your shoulder,” former Immigration and Customs Enforcement chief Tom Homan said in July as he warned that no one would be off the table.
At a campaign rally in Colorado, President Trump emphasized that he would use his legal power to execute a specific law called the Alien Enemies Act of 1798. Trump’s stated objective revolves around dismantling foreign criminal syndicates operating like a lean, mean machine in the United States. Subsequently, Trump has often mentioned this long-standing legislation as a mechanism for implementing large-scale deportations.
“Look at the history of ICE and the Trump years, where there was no lack of political will to deport people,” says John Sandweg in a recent CNN news story. Sandweg was an acting director of the agency during the Obama administration. “And the maximum amount they could do (in one year) was 267,000.”
“It doesn’t matter how many people you arrest,” Sandweg explained to the CNN reporter, “because the Constitution requires that they get due process, which means they have an opportunity to pitch their case to an immigration court.”
“It’s nearly impossible to implement,“ says Laura Collins, an immigration policy expert at the George W. Bush Presidential Center.
“There are still legal processes that we have to go through in order to remove somebody,” Collins stated during her CNN interview. “They have the right to mount a defense. … Just because you’re not a citizen doesn’t mean you don’t have legal rights in this country.”
“It’s selling a fantasy to people,” Sandweg said.
What cannot be overlooked is the assessment of the potential human and financial implications associated with such a course of action.
The American Immigration Council(ACC) conducted an important study and discovered that mass deportation could result in the removal of millions of construction, hospitality and agriculture workers – reducing the GDP by $1.7 trillion.
Still the overriding question remains: can Trump legally carry out such massive deportations without federal intervention?
Will the Former President Re-Win the White House on November 5th, 2024?
What is the Alien Enemies Act of 1798?
The Alien Enemies Act of 1798 grants the President of the United States the authority to detain or expel migrants from adversarial nations during military conflict. This legislation was established as a component of the Alien and Sedition Acts when the country encountered potential hostilities with France.
Despite its existence, presidents have only exercised the Alien Act power on three occasions: during the War of 1812, World War I, and in the aftermath of the attack on Pearl Harbor during World War II. Throughout World War I, more than 6,300 people classified as “enemy aliens,” predominantly German citizens, were interned by the United States. Shortly before World War II ended, the government detained over 31,000 foreigners hailing from various countries, which included Jewish refugees seeking sanctuary, Germany, Japan, and Italy.
While the Alien Enemies Act is still good law certain parts of the Alien and Sedition Acts have since been declared unconstitutional.
Writing for the Brennan Center news website, Katherine Yon Ebright, reported these glaring facts, “The Constitution gives Congress, not the president, the power to declare war, so the president must wait for democratic debate and a congressional vote to invoke the Alien Enemies Act based on a declared war.”
Ebright further writes, “But the president need not wait for Congress to invoke the law based on a threatened or ongoing invasion or predatory incursion. The president has inherent authority to repel sudden attacks – an authority that necessarily implies the discretion to decide when an invasion or predatory incursion is underway.”
Alien Enemies Act Violated By Former Presidents
Former presidents blatantly violated The Alien Enemies Act by prolonging the civil detention of foreigners on U.S. soil as acknowledged by the Supreme Court in its landmark 2001 Zadvydas v. Davis decision. In times of war, detentions are uncertain as the duration of hostilities between dueling countries cannot be predetermined. This uncertainty becomes evident when looking back at World War II, where certain immigrants were held in internment for over a decade, despite being civilians and never facing any criminal charges.
Presidents Woodrow Wilson and Harry S. Truman continued using the Alien Enemies Act after World Wars I and II ended, despite the act having only been used during wartime battles. The Wilson government interned German and Austro-Hungarian immigrants under the statute until 1920, even after World War I ended in 1918. Thereafter, when World War II ended in 1945, the Truman administration continued to use the statute to deport and detain people until 1951.
Drug Cartels Not A Nation
Drug cartels and Latino gangs are individuals operating under organized crime networks. They are not a nation the government can declare a legal war against.
Another dilemma Trump may face trying to deport foreign drug cartels and Latino gangs in the U.S. illegally is that the government hasn’t declared war against the countries they came from like Mexico, and Central and South America because drug cartel criminals are individuals, not a nation.
Rep. Ilhan Omar (D-MN) and Sen. Mazie Hirono (D-HI) have already introduced a repeal bill, the Neighbors Not Enemies Act, in the House and Senate. Yet the bill hasn’t passed at this point.
A mass deportation is also likely to trigger the Fifth Amendment on constitutional grounds. The Fifth Amendment serves as a safeguard for both American citizens and immigrants, shielding them from discriminatory practices and infringements on their rights by the federal government. Legal precedents can lead to the invalidation of policies that show bias towards specific categories like race or lineage, as well as those that encroach upon essential freedoms.
U.S. Alien Sedition Acts: Many Elements Declared Unconstitutional
Legal experts doubt Trump can succeed in invoking this law, which presidents rarely use. The most prominent criticism centers around the fact that the United States has not officially declared war against any nation.
For example, the law stipulates that the President of the United States can remove or restrain aliens residing within the U.S. without affording them due process, but only under specific conditions.
These conditions include a formal:
- Declaration of war between the United States and any foreign nation or government,” or in situations where there is an
- “Invasion or predatory incursion” that is either perpetrated, attempted, or threatened against the United States territory by any foreign nation or government. This legal framework raises important questions about the limits of presidential power and the protections afforded to individuals within U.S. borders.
U.S. Government Hasn’t Declared War on Central or South American Countries: Drug Cartels Are Organized Crime Individuals Not a Nation
The U.S. has not declared war on any Central or South American country. Drug cartels operating in Mexico and South America are not a foreign government that the U.S. can declare war on. Nor do they comprise a “nation.” Instead, they are gangs made up of private individuals.
Trump’s proposed use of the Alien Enemies Act would contradict centuries of precedents. Historically, whenever this Act has been invoked, Congress had declared war on a foreign nation, and foreign nationals residing in the U.S. were treated as prisoners of war rather than being deported. This practice ultimately resulted in the notorious Japanese internment camps of the 1940s – after the Japanese bombed Pearl Harbor.
How Will the Courts Interpret the Alien Enemies Act Against Alien Gangs, Individuals, and Drug Cartels
A new Trump administration will likely face hard-hitting legal challenges if he invokes the Alien Enemies Act. While the majority of Americans are convinced that the surge of migrants who illegally entered the country was nonetheless an invasion, the interpreted term “invasion” in the context of the Alien Enemies Act is a big stretch.
As stated, the Alien Act was originally passed in anticipation of a declaration of war and has been historically used during wartime. Therefore, it would be challenging to argue that the law applies to individual criminals or criminal organizations, no matter how well-organized they may be.
Mexican drug cartels, MS-13, and other Latino gangs from South America or Central America who are residing illegally in the U.S. are, as mentioned earlier, individuals operating as a criminal enterprise, not as a nation.
So how can a new Trump Administration declare war against a group of people instead of a nation as the law requires? Perhaps Trump will utilize the invasion angle to show the cartels came here illegally and they’re not U.S. citizens.
Keep in mind, as the saying goes, some judges may bend the law to make it work for Trump. For instance, the courts may invoke the political questions doctrine and conclude the U.S. judiciary isn’t the shot caller in defining an invasion.
Undoubtedly, legal obstacles will rise to the mountaintop if the Alien Act is applied as Trump described during recent rallies. However, the outcome remains unpredictable.
Immigration Logic
When considering the practical limitations of mass deportations, it’s important to set aside the Alien Enemies Act. The growing number of people seeking asylum, permanent residency, and visas to enter the United States has overwhelmed the already understaffed immigration courts, making logistics extremely challenging, if not unfeasible. Currently, the United States Citizenship and Immigration Services (USCIS) faces a backlog over 3.7 million cases.
To handle the backlog, several new immigration judges must be hired to handle the backlog, and what a monumental task that would be. Regarding the practice of turning away migrants or placing them in detention centers upon arrival into the U.S., the U.S. Supreme Court ruled in 2001 that the government cannot detain undocumented immigrants indefinitely if their home countries refuse to accept them back.
Undertaking such a large-scale deportation initiative would also come with significant financial implications. According to the American Immigration Council, a group committed to advocating for undocumented immigrants in the United States, the projections suggest that executing this extensive deportation campaign would incur a hefty expense of $315 billion for the nation.
This endeavor creates the establishment of new detention facilities including the recruitment, training, and deployment of a substantial police workforce dedicated to immigration enforcement.
Can Trump Deport Millions of Migrants Without Due Process?
The ongoing turmoil at the U.S.-Mexico border and the persisting challenges of drug cartels infiltrating the United States have garnered much attention. Federal authorities acknowledge the severity of the issue, particularly emphasizing the concerning prevalence of drug trafficking.
As the nation grapples with this pressing concern, one pivotal question emerges: how can this complex problem be effectively addressed while navigating sensitive issues such as family separations, the humane treatment of detained immigrants, safeguarding their rights, mitigating potential labor shortages due to increased deportations, and mitigating the considerable economic disruptions arising from any large-scale deportation investigations.
Is it legally within President Trump’s power to deport millions of immigrants without affording them due process if he assumes office in the United States? The answer is not straightforward. While adhering to due process Trump could potentially facilitate the deportation of ‘hundreds of thousands of immigrants.’
Legal constraints may continue to go ‘around and around’ until the pressure becomes too much and explodes, leaving clouds of smoke and confusion over what to do. Once the situation becomes clearer, and if Trump is reelected, could he facilitate the largest deportations in American history?
Only time will tell. Meanwhile, Americans await the outcome of the presidential election between Vice President Harris and Donald Trump on Tuesday.
Senior NewsBlaze Legal Affairs Reporter Clarence Walker Jr. writes about politics, political history, general interest news stories, criminal justice, legal decisions, true crime and small business. He can be reached at [email protected]
