Former President Donald Trump has once again placed immigration at the heart of his 2024 campaign, promising what he claims will be the largest deportation operation in U.S. history.
At recent rallies, Trump revealed more details about this sweeping plan, which would be called “Operation Aurora” and would begin in the city of Aurora, Colorado. What makes this proposal even more controversial is Trump’s claim that he will invoke an 18th-century law, the Alien Enemies Act of 1798, to enforce these mass deportations.
At an October 11 rally in Reno, Nevada, Trump portrayed immigration as an existential threat, stating that immigrants are “trying to conquer us.” Earlier in Aurora, he discussed his intent to use the Alien Enemies Act to expedite the removal of gang members and dismantle criminal networks on American soil. His remarks specifically pointed to the Venezuelan gang Tren de Aragua, which he claimed had “taken over” several apartment complexes in Aurora—a claim that local authorities say has been exaggerated.
Aurora’s police force acknowledged arresting gang members but denied that the gang had taken over any apartment complexes. Despite this pushback, Trump’s rhetoric remains charged, fueling concerns about how far-reaching his plans for immigration enforcement could be. To better understand the legality of this proposal, let’s take a closer look at the Alien Enemies Act and whether Trump could actually use it to carry out mass deportations.
What Is the Alien Enemies Act of 1798?
The Alien Enemies Act is part of a set of four laws known as the Alien and Sedition Acts, passed during a time when the U.S. feared a war with France. While most of these laws were repealed or have expired, the Alien Enemies Act still stands. It grants the president the power to detain or deport individuals from a foreign nation that is either at war with the U.S. or has perpetrated an invasion or threatened an attack. The act was intended to prevent espionage or sabotage during wartime, allowing the president to act without a formal hearing.
Legal scholars, however, argue that this law was designed for wartime use and cannot be applied broadly or during peacetime. Katherine Yon Ebright, a constitutional war powers expert at the Brennan Center for Justice, explains that using the act in a peacetime context for mass deportations “would be a staggering abuse” of its original purpose.
Can Trump Legally Use the Act for Mass Deportations?
Trump has floated the idea of using the Alien Enemies Act against not just Tren de Aragua but also Mexican drug cartels. However, legal experts have pushed back on the feasibility of this approach. The law applies to situations where the U.S. is at war with another country or has been invaded by a foreign government, neither of which is currently the case. Moreover, the act cannot be broadly applied to immigrants from multiple countries.
George Mason University law professor Ilya Somin has noted that Trump’s characterization of illegal immigration as an “invasion” does not meet the legal definition required to invoke the Alien Enemies Act. Even if Trump were to attempt this, it would likely face significant legal challenges. Courts have historically treated the use of wartime powers as a “political question,” but they would likely step in to challenge the misuse of such a law in peacetime.
Historical Precedents for the Alien Enemies Act
The act has been invoked three times in U.S. history—during the War of 1812, World War I, and World War II. In all three instances, the country was at war, and the act was used to detain or deport individuals from enemy nations. Most notably, during World War II, it was employed to detain noncitizens from Axis powers, including Germans, Italians, and Japanese nationals. However, the internment of U.S. citizens of Japanese descent was carried out through a separate executive order, not the Alien Enemies Act.
Trump’s suggestion to use this law in a time of peace, particularly against non-state actors like gangs, diverges sharply from these historical precedents.
The Challenges of Mass Deportations
Trump’s 2016 campaign also promised mass deportations, though his administration fell short of those goals. While 2 million deportations were recorded during Trump’s first term, that number was far less than the 11 million estimated undocumented immigrants in the U.S. at the time. The Biden administration, in contrast, has overseen 4.4 million deportations, a number that outpaces Trump’s record and approaches those seen during George W. Bush’s second term.
One of the main obstacles to mass deportations remains resources. According to legal experts like Georgetown’s Steve Vladeck, the U.S. simply lacks the logistical capacity to locate, detain, and deport millions of people. “Relying on an old statute won’t help solve the resources problem,” Vladeck said, noting that existing immigration laws already provide mechanisms for deportation.
What Lies Ahead?
While Trump’s promises of mass deportations may energize parts of his base, the legal and practical challenges are significant. His plan to invoke the Alien Enemies Act faces formidable legal hurdles, and experts suggest that the courts would almost certainly become involved if such an operation were attempted.
What remains clear is that immigration will continue to be a flashpoint in U.S. politics, with Trump doubling down on the tough stance that defined his previous campaigns. Whether or not “Operation Aurora” ever comes to fruition, the debate surrounding immigration reform and the limits of executive power will undoubtedly intensify in the run-up to 2024.
