In a blistering op-ed in the Des Moines Register, Donald Trump has pledged to reverse “Joe Biden’s border disaster on day one.” Trump has, and deserves, a tremendous amount of credibility on this subject; his record as president of enforcing the immigration laws and controlling the border was sterling. He is also right to say that Biden’s policies are causing a “nation-wrecking nightmare on our southern border,” and not only on our border, but in our major cities.
No nation can tolerate for long the record-breaking number of illegal immigrants that this country has seen and continues to see under Joe Biden. Trump’s proposed measures to stem this illegal tide, to defend America’s communities from the inordinate costs that it imposes, and to enforce the laws as Congress has written them, are long overdue. And even if, as Trump recognizes, bold measures including “record-setting deportation operations” that will result in “millions” of deportations will be needed, those actions are necessary and proportionate to the magnitude of the problems Biden has caused.
One initiative that Trump proposes, however, should give pause even to his strong supporters (of whom I am one). This is his pledge to “invoke the Alien Enemies Act to remove known or suspected gang members, drug dealers, or cartel members from the United States.”
The problem here is that the law in question does not authorize the action Trump proposes. In the laudable effort to enforce the immigration laws as Congress has enacted them, a reelected President Trump should not himself stray beyond them into illegality. If he needs new legal authorities to take actions that will protect the integrity of America’s borders and correct the disastrous policies of the Biden administration, he should ask Congress for those fresh authorities, not simply arrogate them to himself. He should be aiming to restore the rule of law in the area of immigration control (and elsewhere), not to compound Biden’s illegalities with his own.
Trump’s first term began with a blunder on immigration law (the misnamed “Muslim ban”): His original executive order had to go through two later rounds of revisionsbefore finally being upheld by the Supreme Court. The episode caused avoidable embarrassment at the start of Trump’s administration. The second term should not replay the error of the first.
The Alien Enemies Act is an old statute, enacted in its original form in the administration of John Adams. In essence, it provides authority for the president to remove alien enemies (such as German, Japanese, or Italian nationals in World War II) from the United States. The act requires that an antecedent condition be satisfied before the powers that it vests are activated. Those conditions are either that (1) “there is a declared war between the United States and a[] foreign nation or government,” or that (2) an “invasion, or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government” (emphasis added).
Broadly speaking, the law provides authority to expel foreign nationals either when there is a declared war between the state of their nationality and the United States, or else an actual or threatened invasion of this country by that state.
The first condition is not met: There is no declared war between the United States and the only nation — Mexico — on its southern border. But the second condition is also not met. Even if one considers the illegal border crossings of large numbers of gang members, drug dealers, and cartel members from Mexico into the United States to be an “invasion” (which, in a legal sense, it might not be), their invasion is not being done by the nation or government of Mexico. This seems to be true even if it could be established that the government of Mexico has not taken (under Biden) adequate steps to police its border with the U.S. or to prevent millions of illegal aliens from crossing it.
Mexico has assisted U.S. border control operations in the recent past: As Trump’s op-ed points out, as president he “got the Mexican government to deploy tens of thousands of soldiers to the border free of charge.” If Biden has been unwilling to continue such cooperation with the Mexican government, the fault is his: His failure does not make Mexico responsible for the flow of illegal migrants.
Moreover, Trump’s proposal to use the Alien Enemies Act to remove “known or suspected” gang members and the rest is not as easy to implement as it might seem. It has long been established that those facing removal are entitled to at least a modicum of due process. While such a process might be truncated in the case of those illegal entrants “known” to be gang members or the like, it would have to be more substantial for those merely “suspected” of such activities or associations.
None of this is to deny that gangs, cartels, and traffickers of drugs or human bodies entering this country from Mexico are not causing immense harm to the people and institutions of this country. They are, and our federal government should make every effort to stop them. But the Alien Enemies Act does not provide a legal fix for this problem.
A reelected President Trump will surely encounter a buzzsaw of left-wing and corporate opposition when he begins deporting millions of aliens who have no legal right to be here. He should not undercut or compromise that program by entangling it with another initiative that the courts are very likely to shoot down. He would be better advised to toss that ball to Congress. On day one, he should offer a well-considered piece of legislation to Congress, aimed at the specific targets of cartels, gangs, and traffickers, that would fully empower him to move swiftly and decisively against them.
Robert J. Delahunty is a Washington Fellow of the Claremont Institute Center for the American Way of Life. His new book, The Politically Incorrect Guide to the Supreme Court, co-authored with John Yoo, will be published by Regnery on June 27.
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