A huge fight is taking place over both the propriety and the legality of president-elect Donald Trump’s repeated insistence that he will carry out a mass deportation of illegal aliens, using what he claims are the available emergency powers granted to him under the never-repealed Alien Enemies Act of 1798. The political response to his plan has mirrored the divisions of the campaign.
Trump’s defenders assert that he enjoyed widespread public support during the campaign for his plan to remove many of these aliens, starting with persons who have committed crimes while in the United States, and moving on to include many others, especially young unmarried men, now housed nationwide in various hotels and other makeshift accommodations. These Trump defenders also praise “border czar” Tom Homan, who has promised to use US military personnel as a “force multiplier” in a backup role to better allow federal agents to round up targeted persons. Trump supporters also well understand that any program they wish to implement will depend on their ability to forge close relations with Latin American countries, like those that prevailed under the “remain in Mexico” policy, which had allowed the United States to send to Mexico individuals seeking asylum in the United States until their court date.
In contrast, Democrats have denounced these plans as a peril to all Americans, disrupting every area of life, upsetting social and business arrangements alike. In response, key communities like Los Angeles and Denver have voted to adopt the status of sanctuary cities, aiming to insulate illegal immigrants from arrest and deportation. Thus, Denver Mayor Mike Johnston compares the current situation to a 1989 “Tiananmen Square moment” that justifies the use of local police and some fifty thousand residents “stationed at the county line” to resist any federal incursion, in a city that has already taken in forty thousand illegal immigrants. Johnston’s pugnacious stance provoked a sharp response from Republican Councilwoman Danielle Jurinsky in Aurora, a city where the Venezuelan gang Tren de Aragua has become entrenched. Its members are prime targets for immediate deportation.
Similarly, the Los Angeles City Council, in anticipation of the Trump onslaught, approved a so-called “sanctuary city” ordinance that bars city resources from being used for immigration enforcement and prohibits city departments from sharing information about people without legal status with federal immigration authorities.
And so the battle lines are drawn, with many legal skirmishes ahead. How they should come out is a mixed verdict. The initial point is that there is little in the Alien Enemies Act that bolsters Trump’s ability to declare any national emergency. The key passage in the statute is that “whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government,” the president shall make a public announcement that allows him to identify all “males of the age of fourteen years and upwards . . . as alien enemies” and subject them to deportation. There is of course no ongoing war—and it is odd to think of the actions of independent persons seeking to immigrate to the United States over a period of years as some kind of “predatory incursion.” Indeed, the notion of an emergency is properly applied to discrete events and not to a rolling set of dangers, such as those of COVID, where the repeated renewals during the pandemic without legislation created an excessive concentration of authority in the executive branch that resulted in massive social losses in the form of excessive lockdowns, school closures, and unneeded vaccine mandates. The ACLU was quick to condemn Trump for making a “baseless” claim of an invasion that could be used as the “authority to deport all Mexican nationals,” including families with children who are US citizens—a wild charge that accurately measures the mood on the American left but does not describe the situation on the ground.
Even if the Alien Enemies Act is misapplied in this context, it hardly follows that the president cannot find other sources of constitutional authority to implement his deportation program. The issue here is one of federalism, dealing with the proper relationship between national and state power. That issue came to the fore in the 1941 case of Hines v. Davidowitz, which held that an Alien Registration Act adopted by Pennsylvania in 1939 was displaced by the federal Alien Registration Act of 1940. The Supreme Court, speaking through Justice Hugo Black, did not take the categorical position that Pennsylvania could pass no law on the topic in the absence of federal legislation, which would have been unwise given that any risk posed by aliens in the runup to World War II clearly pertains to the safety and health of the citizens of each state and thus is a proper subject of the police power. But it was abundantly clear where the higher authority was situated:
[T]he supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution, was pointed out by the authors of The Federalist in 1787, and has since been given continuous recognition by this Court. When the national government by treaty or statute has established rules and regulations touching the rights, privileges, obligations, or burdens of aliens as such, the treaty or statute is the supreme law of the land.
The next question is, what is the residual authority of the state? The clear implication of this passage is that the state cannot set itself up in opposition to the federal government, no matter what the respective merits of the two substantive positions. In this instance, the need for general uniformity becomes paramount, such that it would not allow red states to beef up the campaign against illegal immigration any more than it would be permissible to let blue states undo the actions of the federal government.
Now it seems clear that the blue-state havens like Denver and Los Angeles are on a collision course with the federal government if they try to take active steps to block federal agents from taking into custody any illegal aliens within their jurisdictions. Given that their actions are high-profile, the sanctions could be very heavy, including, ironically, accusations of insurrection, which encompasses:
- The act or an instance of open revolt against civil authority or a constituted government.
- A rising against civil or political authority, or the established government; open and active opposition to the execution of law in a city or state.
In this regard, the Denver statement in particular is asking for trouble insofar as it tries to join both police and (armed?) civilians against the federal government. A confrontation of that sort benefits no one, and it is best to treat Mayor Mike’s defiance as a dramatic gesture, at least until he actually tries to carry out that unwise threat.
But what else might the states do to slow down the federal juggernaut? In this connection, the states can point to the important Supreme Court decision in Printz v. United States (1997), which held that the federal government could not enlist the chief law enforcement officer in each locale in the enforcement of the Brady Act, which required review of all gun transfers under the Gun Control Act of 1968. That case has obvious implications here because it means that the federal government cannot enlist the services of an official in any blue state to cooperate with the federal government in rounding up persons for deportations. But, by the same token, it remains the case that these state officials cannot take actions that block or interfere with federal efforts.
This distinction, like any distinction between misfeasance and nonfeasance, gives rise to a host of borderline situations. For example, is it permissible for state officials to refuse to allow federal officials to take custody of aliens still in state prison? And for those who are released, must state officials allow federal officials to obtain information about their whereabouts, even if they are not required to hand that information over? It is quite clear that these cases can be a ceaseless source of fiction if both sides decide to bare their teeth in combat.
That would be rank foolishness on both sides. It should be apparent that the success of any deportation program depends on setting the right priorities as to who should stay or go. After all, President Biden’s administration never took the position that no illegal alien should be allowed to stay, and in fact it conducted, as did that of President Obama before it, numerous deportation proceedings (along with many “self-deportations”) for the most dangerous aliens. There should be more overlap between the two warring sides than first meets the eye. There is perfect agreement between the two sides as to who should top the priority list for deportations. Indeed, there is much disagreement over how many people should be deported, and when, but those are questions better solved by cooperation in getting the correct information and then using it judicially. Heated and protracted conflict between the parties makes no sense. They should start cooperating by building on common ground—and do it now.
