Donald Trump plans to exploit the Alien Enemies Act

President-elect Donald Trump is getting ready to repeat a shameful mistake from our nation’s history. As part of his plans for mass deportation, Trump has promised to dust off the Alien Enemies Act, last used by President Franklin D. Roosevelt in World War II to hold 31,000 noncitizens of Japanese, German and Italian descent in internment camps based on their ancestry. Trump and his advisers claim that the same law would permit the detention and deportation of millions of noncitizens currently in the United States. Congress and the courts can and should stop him.

Enacted in 1798, the Alien Enemies Act allows the president, during a declared war or an “invasion” or “predatory incursion” by a foreign government, to summarily detain and deport noncitizens who were born in enemy nations. Japan’s surprise attack on Pearl Harbor on Dec. 7, 1941, which killed over 2,400 Americans, opened the door for Roosevelt to proclaim an invasion and invoke the law. Within 24 hours, more than 1,000 noncitizens of Japanese descent had been detained. Many more would follow — along with an even larger number of US citizens of Japanese descent, detained under a separate legal authority.

Instead of using the Alien Enemies Act to respond to a real invasion, however, Trump proposes to exploit the law to address a purely rhetorical “migrant invasion” allegedly fueled by drug cartels south of the US-Mexico border. If successful, the move could unlock sweeping authority to target millions of Latino immigrants, detaining them in immigration-processing camps and ultimately deporting them without a hearing. It could allow Trump to bypass regular immigration law, which contains protections for asylum-seekers and affords basic procedural rights to undocumented individuals who have lived in the United States for years. Trump could even seek to detain and deport immigrants who are lawfully present in this country, including green card holders who have lived in the United States for decades and have children who are US citizens.

Using the Alien Enemies Act for peacetime immigration enforcement would be a staggering abuse of the law. Both its history and its text make clear that the Alien Enemies Act can be used only in wartime. Congress enacted the law under its constitutional war powers, designing it to address declared wars and armed attacks by hostile foreign powers — not migration by people fleeing hardship or seeking economic opportunity. Anyone committed to the rule of law, regardless of their politics, should oppose such blatant overreach.

But that’s not the only problem with Trump’s proposal. Whether used in wartime or peacetime, the Alien Enemies Act is inconsistent with modern understandings of equal rights under the US Constitution. It discriminates against individuals based solely on their ancestry — allowing the government to deem groups of people loyal or disloyal, safe or dangerous, based merely on where they were born. As the Supreme Court held in its 2000 Rice v. Cayetano opinion, ancestral discrimination “implicates the same grave concerns” as unconstitutional racial discrimination.

What’s more, the law suffers from a near-total lack of due process, or protections against arbitrary violations of people’s rights and liberties. There is no requirement that the president show, let alone persuade a court, that targeted individuals are likely to conduct espionage or sabotage on behalf of a foreign adversary. Nor does it allow targeted immigrants an opportunity to prove that they are loyal, law-abiding members of society. The law can be — and has been — used against permanent residents on the cusp of naturalizing, as well as noncitizen veterans of the US military.

Because of this clear conflict between the Alien Enemies Act and the values enshrined in our Constitution, we rightly regret past uses of the law. In 1988, Congress enacted a reparations regime for Japanese internment, acknowledging that both noncitizens and US citizens of Japanese descent had been targeted out of “racial prejudice.” In 2000, Congress enacted the Wartime Violation of Italian American Civil Liberties Act to apologize for the smaller-scale internment of roughly 3,000 noncitizens of Italian descent. And the George W. Bush administration, even as it cracked down on Muslim American communities after September 11, acknowledged that the use of the Alien Enemies Act in World War II had discriminated on the basis of ancestry and gone too far.

Despite these expressions of remorse, Congress has failed for decades to prioritize repealing the Alien Enemies Act. Not until August 2001, when Sens. Russ Feingold and Charles Grassley introduced the Wartime Treatment Study Act, did lawmakers ask why the law was still on the books and question its “continued viability.” But congressional appetite for reform evaporated in the wake of the 9/11 attacks the following month. Congress must take up Alien Enemies Act repeal once more. In the meantime, the courts must prepare to strike down an inappropriate peacetime use of the law or overturn it altogether. The threat that Trump will abuse the Alien Enemies Act to perpetrate another mass violation of constitutional rights demands decisive action. We should not repeat the shameful mistakes of America’s past.