Throughout his campaign, President Donald Trump referred to unlawful migration as an “invasion.” Some interpreted this language as a purely rhetorical device to drum up fear and to convey that migrants, despite all evidence to the contrary, come to the United States bent on violence and destruction. But national security and immigration lawyers knew better. With each reference to the supposed “invasion” across the United States’s southern border, we saw a growing risk that Trump would try to misappropriate wartime laws for peacetime immigration enforcement.
The truth turned out to be worse.
Trump’s migration-as-invasion theory permeates his executive orders and other pronouncements on immigration. But he is not just using the frame to try to exploit inapplicable wartime laws and constitutional authorities, as damaging as that is. In at least one of his orders, he is also using it to lay claim to vast presidential powers that don’t exist in peacetime or wartime, launching a direct assault on the constitutional separation of powers and the rule of law.
To begin, one of Trump’s Day One orders tees up a potential invocation of the Alien Enemies Act of 1798, a wartime law that can be invoked in times of “invasion.” The Act was last used in World War II to intern 31,000 noncitizens of Japanese, German, and Italian descent without due process. (U.S. citizens of Japanese descent were interned under a separate authority.) If Trump invokes the law—and if the courts uphold his invocation—it could empower him to summarily detain and deport foreign nationals who are lawfully present in the United States and have no criminal history.
This would be a clear abuse of the law. As explained in a recent report from the Brennan Center (where we work), the Alien Enemies Act’s powers are available in response to a literal armed attack, not a figurative or purely rhetorical “invasion.” The language and structure of the law, as well as the congressional debate over its enactment, leave no doubt on this point; the law refers to acts of “actual hostility” and was intended to implement the law of war. The law has been used only in times of declared war or, during World War II, in the immediate wake of Japan’s attack on Pearl Harbor.