Can Donald Trump use a 1798 law to carry out mass deportations?

A cornerstone of former President Donald Trump’s 2024 campaign has been his promise to carry out the largest deportation operation in US history. The details of how he carried out the plan have not been clear. But in recent rallies, Trump has said he will use an 18th-century law to enforce mass deportations.

The deportation operation will begin in Aurora, Colo., and will be called “Operation Aurora,” Trump said at an Oct. 11 rally in Reno, Nev., adding baselessly that immigrants are “trying to conquer us”.

At an Oct. 11 campaign rally in Aurora, Colo., he said he would invoke the Alien Enemies Act of 1798 to expedite the deportation of gang members and to “target and dismantle all criminal networks of migrants operating on US soil”.

Trump was referring to a Venezuelan gang, Tren de Aragua, which he said has taken over “several apartment complexes” in Aurora. Claims that a Venezuelan gang had taken over Aurora began in August, when a video of a group of Spanish-speaking gunmen walking through an apartment complex in the city went viral. However, local officials have pushed back, saying concerns about Venezuelan gangs in Aurora are “grossly exaggerated.”

Aurora police say they have arrested members of the Tren de Aragua gang, but have not said they took over the apartment complexes.

Here’s what we know about the 1798 law that Trump promised to invoke and what legal experts are saying about Trump’s ability to use it for mass deportations.

The Foreign Enemies Act of 1798 is part of a larger set of four laws – the Alien and Sedition Acts – that the United States passed because it feared an imminent war with France. The laws increased citizenship requirements, criminalized speech critical of the government, and gave the president additional powers to deport noncitizens.

Three of the laws were repealed or expired. The Alien Enemies Act is the only one still in effect.

The law allows the president to detain and deport people from a “hostile nation or government” without a hearing when the U.S. is at war with that foreign country or the foreign country has “perpetrated, attempted, or threatened” a legally called invasion or incursion . a “predatory raid” against the US

“Although the law was enacted to prevent foreign espionage and sabotage in wartime, it can be — and has been — done against immigrants who have done nothing wrong,” and who are legally in the States United, Katherine Yon Ebright, Constitutional War Expert. powers of the Brennan Center for Justice, a nonpartisan think tank at New York University School of Law, wrote in an Oct. 9 report.

US presidents have invoked the law three times, only in times of war:

• The War of 1812: Former President James Madison invoked the act against Britons who had to report their age, how long they had lived in the US and whether they had applied for citizenship.
• First World War: Former President Woodraw Wilson invoked the act against people in Germany and its allies, such as Austria-Hungary.
• World War II: Former President Franklin Delano Roosevelt invoked the act “to apprehend allegedly potentially dangerous enemy aliens,” the National Archives said. This included mainly Germans, Italians and Japanese. The act was used to place non-citizens of these countries in internment camps. The act was not used to detain American citizens of Japanese descent. That’s why an executive order was used.

Trump has mentioned enforcing the 1798 law against Mexican drug cartels and Tren de Aragua, the Venezuelan gang.

Legal experts said Trump does not have the authority to invoke the Alien Enemy Act against gang members or as a tool for mass deportations.

To invoke the act, an invasion must be perpetrated or threatened by a foreign government. The US is not currently at war with any foreign government. The law also cannot be used broadly for people in all countries.

Invoking the act “as a turbocharged deportation authority … is at odds with centuries of legislative, presidential and judicial practice, which confirm that the Alien Enemies Act is a wartime authority,” Ebright said in the your report “To invoke it in peacetime to bypass conventional immigration law would be a staggering abuse.”

Trump and his allies have called the rise in illegal immigration under President Joe Biden an invasion. Legal and immigration experts disagree with the characterization.

Illegal migration or drug trafficking at the southern border is not an invasion, George Mason University constitutional law professor Ilya Somin wrote in an Oct. 13 report.

Legal experts have said an attempt to use the Alien Enemy Act for mass deportations would likely be challenged in court. However, it is unclear whether the courts will issue a decision.

A court last heard a case on the Alien Enemies Act after World War II. Former President Harry Truman had continued Roosevelt’s invocation of the act for years after the end of the war. The court then ruled that whether a war had ended and whether wartime authorities had lapsed were “political questions” and therefore not for the courts to decide.

Similarly, some courts have previously held that the definition of a trespass is also a political question.

During his 2016 presidential campaign, Trump promised to deport all immigrants living in the United States illegally. However, he failed to do so.

When Trump took office, an estimated 11 million people were in the country illegally. From fiscal years 2017 to 2020, the Department of Homeland Security recorded 2 million deportations. (FY 2017 included about four months of former President Barack Obama’s administration.) By comparison, Obama carried out 3.2 million and 2.1 million deportations during each of his terms, respectively.

The Migration Policy Institute, a nonpartisan think tank, reported in June that the Biden administration has carried out 4.4 million deportations, “more than any presidential term since the George W. Bush administration (5 million in his second term).”

Georgetown University constitutional law professor Steve Vladeck wrote in his Oct. 14 newsletter that there are already immigration laws that allow deportations. But one of the main challenges to carrying out a mass deportation operation is the lack of resources needed to find, detain and deport large numbers of people.

“Relying on an old statute is not going to help solve the resource problem,” Vladeck said.

This fact check was originally published by PolitiFact, part of the Poynter Institute. See the sources to verify this fact here.