By Ted Hesson and Kristina Cooke
WASHINGTON – President Donald Trump is set to test the limits of his immigration crackdown by invoking a wartime law to deport immigrants alleged to be gang members without court hearings, a broad authority that could supercharge his mass deportation push and potentially sweep in people not charged with crimes.
After taking office, Trump ordered military and immigration officials to be ready by Feb. 3 to implement the 1798 Alien Enemies Act, last used to justify internment camps for people of Japanese, German and Italian descent during World War Two. The move – which would almost certainly face legal challenges – could allow him to bypass due process rights and rapidly remove migrants.
Trump, a Republican, stormed back into the White House promising to deport millions of immigrants in the U.S. illegally – an action he said was necessary after high levels of illegal immigration under Democrat Joe Biden.
Trump issued a flurry of executive actions to redirect military resources to support the mass deportation effort and empowered U.S. immigration officers to make more arrests, including at schools, churches and hospitals – even though those specific measures are unpopular and highly contested by civil and immigrant rights groups.
But even with Trump’s sweeping early actions, his administration will have to contend with overwhelmed immigration courts where asylum cases can take years to resolve. Trump expanded a fast-track deportation process known as expedited removal, but it only applies to those in the U.S. for two years or less and still gives migrants the ability to claim asylum.
The Alien Enemies Act could allow Trump to rapidly deport migrants deemed part of an “invasion or predatory incursion” – a novel use of a law previously only invoked in wartime. Republicans frequently refer to illegal immigration as an invasion and portray migrants as dangerous criminals and “military-aged.”
The White House said on Jan. 20 that it was beginning a process to designate criminal cartels and gangs, including the Venezuelan gang Tren de Aragua, as terrorist organizations and to use the Alien Enemies Act to deport alleged gang members.
Hundreds of thousands of Venezuelans arrived in the U.S. during Biden’s presidency, many via legal humanitarian pathways, and deporting them has been challenging due to frosty U.S.-Venezuela relations. On Saturday, Trump said Venezuela had agreed to accept all deportees, but provided few details.
One Trump official who requested anonymity to discuss plans told Reuters in November that the administration would have “a willingness to be creative” when it came to unlocking new enforcement powers.
The White House did not respond to a request for comment.
Ken Cuccinelli, a top Homeland Security official during Trump’s first term, expects the use of the Alien Enemies Act would face legal challenges but said the administration should try.
“He would have established, for all time in the future, the presidential authority to utilize that statute in that fashion,” Cuccinelli said.
Opponents argue the law cannot be used simply to step up immigration enforcement outside of an actual conflict.
“Desperate families coming to our border to seek refuge do not constitute an invasion by a foreign government within the meaning of the law,” said Lee Gelernt, a leading attorney with the American Civil Liberties Union (ACLU), which has put up legal challenges to many of Trump’s previous moves.
Democratic lawmakers in the U.S. House and Senate reintroduced a bill in January that would repeal the Alien Enemies Act, pointing to its use in the internment of Americans and arguing it violates civil and individual rights.
“We cannot allow antiquated laws to continue enabling discriminatory practices that harm immigrant communities,” Representative Ilhan Omar said in a Jan. 22 statement related to the bill.
DETENTION RAMP UP
The Trump administration is pushing to ramp up detention space, a move that could work in conjunction with the Alien Enemies Act.
Trump last week ordered the expansion of a migrant detention site in Guantanamo Bay, Cuba, to hold up to 30,000 people. Military officials said they would set up a detention site on a space base in Aurora, Colorado, a city Trump has portrayed as controlled by migrant gangs despite pushback from local leaders.
U.S. Immigration and Customs Enforcement (ICE) stepped up arrests last week, picking up about 1,000 people per day – three times the daily average last year.
The agency has funding to hold an average of 41,500 migrants this year and currently has about 40,000 in custody, according to its figures.
U.S. immigration courts, however, had a backlog of 3.6 million cases at the end of fiscal year 2024, according to the Congressional Research Service, a jam that could hamper deportations.
“Unless he figures out a way to bypass the immigration courts, mass deportation is an impossibility,” said John Sandweg, a former acting ICE director under Barack Obama. “But if Alien Enemies is allowed to go into effect, then mass deportation becomes a potential reality.”
Despite his hardline rhetoric, Trump in his first term deported fewer people than Obama, his Democratic predecessor. Biden deported more in fiscal year 2024 than Trump during any single year of his 2017-2021 presidency.
Trump said during his Jan. 20 inaugural speech that he would invoke the Alien Enemies Act “to use the full and immense power of federal and state law enforcement” to target criminals and designate criminal cartels as terrorist organizations.
However, he declined to take those actions right away, instead kicking off a two-week process to prepare for potential implementation.
The more deliberate strategy is a departure from his first term, when he blocked travelers from majority-Muslim countries and caused chaos in airports worldwide.
George Fishman, a former Trump Homeland Security official, said the administration was wise not to immediately implement the most far-reaching enforcement authorities, which he said could make them more likely to prevail legally before the conservative-leaning Supreme Court.
“It may take a little bit longer,” he said, but doing it in this way “will most likely lead to success at the Supreme Court.”
(Reporting by Ted Hesson and Kristina Cooke; Editing by Mary Milliken and Aurora Ellis)
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