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The administration of President Donald Trump is ready to invoke the Foreign Enemies Act, enacted in 1798, which would grant him broad powers to carry out mass deportations swiftly.
Sources close to the discussions assure that the president's team has already finalized the necessary legal and administrative details to execute this strategy, making its implementation highly likely.
CBS News reported that the law could come into effect as soon as this Friday to authorize the summary deportation of certain immigrants, even to Guantanamo Bay, intensifying the government's immigration crackdown.
The law, which is 227 years old, grants presidents the extraordinary power to order the arrest, detention, and deportation of non-citizens aged 14 and older from countries that organize a "depredatory invasion or incursion" into the United States.
Individuals subject to the Foreign Enemies Act would not be able to have a judicial hearing or an asylum interview, as they would be processed under emergency authority during wartime, not under immigration law.
Instead, they could be detained and deported with little to no due process under Title 50, the section of the U.S. code that contains the laws of war and national defense of the United States.
The Foreign Enemies Act has been invoked only a few times in the history of the United States, including during World War II, when the government used it to monitor and detain Italian, German, and Japanese immigrants in the United States.
Trump anticipated his invocation of the Foreign Enemies Act in an executive order issued on his first day back in the White House. In this order, he instructed the Secretaries of State and Homeland Security to plan for the potential invocation of the law and to prepare the necessary facilities to streamline the deportation of those affected.
"By invoking the Alien and Sedition Acts of 1798, I will direct our government to employ the full power of federal and state law enforcement to eradicate the presence of all foreign gangs and criminal networks that bring devastating crimes to American soil, including our cities and urban centers," Trump said in his inaugural speech.
Although the measure will face legal challenges, the president and his team are confident that they can navigate them using existing legislation.
A little-known legal resource
The Alien and Sedition Acts, enacted in 1798 during the presidency of John Adams, grant the president broad powers to pursue and expel undocumented immigrants during times of war or when the country faces a foreign threat.
Historically, this law has been invoked only on rare occasions, and always in the context of official armed conflicts.
According to the Brennan Center, it has been used three times in the history of the United States: during the War of 1812, World War I, and World War II, in each case to justify the detention and expulsion of immigrants from enemy nations.
CNN reported that several government agencies have discussed the potential implementation of this law, with a particular focus on the Tren de Aragua (TDA), a criminal organization of Venezuelan origin with operations in the United States and other countries.
Trump has instructed his administration to designate the TDA as a foreign terrorist organization and use this designation as a basis for the removal of its identified members.
Under what circumstances can the law be invoked?
The text of the Foreign Enemies Law states that it may be applicable if:
A war is declared between the United States and "any foreign nation or government."
- A predatory invasion or incursion against the territory of the United States is carried out, attempted, or threatened by a foreign nation or government.
The president issues a public proclamation for the event.
However, legal experts argue that invoking the law in the absence of formal warfare could be problematic. "There is no military invasion or predatory military incursion perpetrated by a foreign nation or government," said Ebright, a legal specialist.
"And so, regardless of whether you would like to apply it broadly or narrowly, we would oppose any invocation as an abuse of authority in times of war," he added.
Why would Trump resort to this law?
Trump has stated that the Foreign Enemies Act would give him "tremendous authority" to act swiftly against gangs, cartels, and drug traffickers.
In October, during a rally in New Mexico, he stated: "You have to go back a long way because as we have grown and grown, our politics and our politicians have become increasingly weak. Our laws mean nothing."
The current immigration judicial system, in which cases can take years to resolve, is one of the biggest obstacles to Trump's plans for mass deportation.
According to Jean Lantz Reisz, co-director of the immigration clinic at the Gould School of Law at the University of Southern California: "Trump is using this legislation as a way to bypass all due process and make it easier to arrest and deport people."
The legal challenges and historical precedent
While the Foreign Enemies Act has been used in the past to expel citizens of countries at war with the U.S., its implementation in times of peace would be unprecedented and might not withstand judicial scrutiny.
"Overcoming these obstacles would be a steep climb in federal court," explained George Fishman, former deputy general counsel of the Department of Homeland Security.
History also works against this measure.
During World War II, the law served as a basis for the detention and deportation of German, Italian, and Japanese immigrants, influencing the infamous policy of internment for Japanese Americans.
"The sordid history of this law clearly shows why it should not be used in the future," Ebright warned.
What impact would it have on immigrants?
Under the Foreign Enemies Act, affected immigrants could file lawsuits to challenge their detention, but unlike regular immigration procedures, there would be no automatic judicial review process.
"The only procedural protection is that you have time to resolve your issues before being deported," Ebright pointed out.
Organizations such as the American Civil Liberties Union (ACLU) and advocates for immigrant rights are already preparing to respond to any attempts to invoke this law.
"My hope is that the courts recognize that it is a bad faith mistake to say that migration is an invasion or that non-state actors are foreign governments," Ebright concluded.
Could Congress repeal this law?
Some Democratic legislators have pushed initiatives to repeal the Foreign Enemies Act in recent years.
"The Foreign Enemies Act of 1798 is a xenophobic law that has been unjustly used to target immigrants in the U.S. and should have been repealed a long time ago," stated Senator Mazie Hirono of Hawaii.
As Trump moves forward with his plan for mass deportations, the legal community and civil rights advocates remain vigilant.
It remains to be seen whether the president's legal strategy will overcome judicial challenges, or if it will be another failed attempt to toughen U.S. immigration policy.
Frequently Asked Questions about the Invocation of the Foreign Enemies Act and Mass Deportations in the U.S.
What is the Foreign Enemies Act and why does Trump plan to invoke it?
The Alien Enemies Act, enacted in 1798, grants the president extensive powers to arrest, detain, and deport non-citizens from countries deemed hostile during times of war or foreign threat. Trump plans to invoke it to expedite mass deportations, arguing that it gives him "tremendous authority" to act swiftly against gangs and foreign criminal networks.
What are the legal challenges of invoking the Foreign Enemies Act in times of peace?
Invoking the Foreign Enemies Act in peacetime could face serious judicial challenges, as it has historically been used in contexts of official armed conflicts. Legal experts point out that without a formal war, applying this law could be seen as an abuse of power and is likely to encounter significant legal barriers.
What impact would invoking this law have on the affected immigrants?
Under the Foreign Enemies Act, affected immigrants could be deported without a judicial process, as they would not have the right to a hearing or asylum request. This would entail a summary deportation process without due process, raising concerns among human rights advocates and immigration attorneys.
How does Trump plan to use the military for mass deportations?
Trump has announced his intention to declare a national emergency to use military resources in implementing mass deportations. This plan includes the mobilization of troops to bolster security and facilitate the rapid deportation of undocumented immigrants, which has sparked controversy and potential legal battles.
What additional measures does Trump have in mind to intensify his immigration policy?
In addition to invoking the Foreign Enemies Act, Trump plans to use the 287(g) Program to collaborate with local forces in the identification and deportation of undocumented immigrants. He is also considering reactivating Title 42 and applying Section 243(d) of the Immigration and Nationality Act to suspend visas to countries that do not cooperate with deportations.
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