Donald Trump wants to immediately invoke a more than 200-year-old wartime law that grants the president unilateral authority to deploy federal law enforcement for rounding up and deporting immigrants as soon as he enters office.
The former president, speaking from Aurora, Colorado on Friday, told supporters that he plans to revive the Alien Enemies Act of 1798, which would give the president unprecedented ability to target foreigners for removal, without a hearing or due process, based solely on their place of birth or citizenship.
His “Operation Aurora” — named after the Colorado city he has denigrated as a “war zone” from “migrant crime” — would also dispatch “elite squads of ICE, border patrol, and federal law enforcement officers to hunt down, arrest, and deport every last illegal alien gang member until there is not a single one left in this country,” he said.
“And if they come back into our country, they will be told it is an automatic 10-year sentence in jail with no possibility of parole,” said Trump, flanked by posters reading “deport illegals now” and “end migrant crime.”
“And I’m hereby calling for the death penalty for any migrant that kills an American citizen or a law enforcement officer,” he said.
The Alien Enemies Act of 1798 — part of the centuries-old Alien and Sedition Acts drafted during an undeclared war between the US and France — has only been invoked three times within the last 226 years.
During the first and second World Wars, the US turned to the law to detain and restrict German, Austro-Hunarian and Italian immigrants, and infamously used the law for the shameful internment of Japanese Americans, now widely seen as a stain on America’s 20th century history.
The law states that the president may order the arrests and removal of noncitzens during times of “declared war” or during an “invasion” or “predatory incursion” by “any foreign nation or government.”
Only Congress can declare war, per the Constitution. But Trump and his allies and right-wing legal groups want to interpret the law more broadly — by expanding the definition of “invasion” and “predatory incursion” to mean border crossings, and for drug cartels or criminal gangs to be considered a “foreign nation or government.”
Trump has frequently mentioned the law when discussing his immigration agenda as far back as 2016. He first mentioned his plans to invoke the law for his mass deportation plans during a campaign event last month, following months of violent anti-immigrant rhetoric and behind-the-scenes planning for large-scale immigration enforcement in the 2024 race.
The Fifth Amendment of the Constitution grants Americans the right to due process, and courts routinely strike down discriminatory laws that target one’s race or ancestry.
Legal scholars, civil rights groups and Democratic elected officials have pushed for repealing the law, but legislation has stalled in a largely deadlocked Congress. The Brennan Center at NYU School of Law has warned that the law is dangerously outdated and “ripe for abuse.”
“Although the law was enacted to prevent foreign espionage and sabotage in wartime, it can be — and has been — wielded against immigrants who have done nothing wrong, have evinced no signs of disloyalty, and are lawfully present in the United States,” the organization explained. “It is an overbroad authority that may violate constitutional rights in wartime and is subject to abuse in peacetime.”
