President Trump’s Invocation of the Alien Enemies Act is an Unconstitutional Power Grab

A statement from Katherine Hawkins, senior legal analyst at the Project On Government Oversight:

President Donald Trump’s decision to invoke an unconstitutional, outdated law, the Alien Enemies Act, would give him the power to summarily arrest, detain, and deport people — including children as young as 14. It is a dangerous abuse of power. 

By attempting to use this law today to deport and detain immigrants without due process, the president is overstepping his constitutional authority. 

While Trump attempts to justify the use of this law by claiming an “invasion” or “irregular warfare” by a Venezuelan gang, the law does not afford him this power. The Alien Enemies Act was meant to be used following a declaration of war or in response to an “invasion or predatory incursion” from a foreign nation or government. We are not at war with Tren de Aragua, or immigrants or gangs more generally, and the power to declare war is one that only Congress possesses.   

The problem isn’t only that this wartime law is being invoked during peacetime. The law itself also presents serious constitutional concerns. The law was passed in 1798, before the Constitution had a 14th Amendment. It has obvious conflicts with equal protection and due process of law. 

Moreover, the law enables the arrests of people of a certain nationality, even if they are not citizens of that country, and it has a history of being used to enable racist abuse. The Alien Enemies Act was used to justify internment of Japanese, German, and Italian noncitizens during World War II. In 1988, Congress apologized for the “grave injustice” of Japanese internment, saying it was “motivated largely by racial prejudice, wartime hysteria, and a failure of political leadership.” 

Use of the Alien Enemies Act could again lead to the targeting of legal residents based on their ancestry, on the way they look, or on an accusation of gang affiliation that detainees will have no meaningful opportunity to contest. 

This plan will rightly face legal challenges, as the president is blatantly misusing this unconstitutional, outdated law. The courts must put an end to this abuse of power immediately, and Congress should finally repeal this harmful law.