Trump plans to invoke obscure 18th century wartime law in bid for mass deportations

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 US 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 US 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 US 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 US during Biden’s presidency, many via legal humanitarian pathways, and deporting them has been challenging due to frosty US-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.