Ilya Somin on Donald Trump and the Alien Enemies Act [Updated]Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Trump's Plan to Use the Alien Enemies Act of 1798 as a Tool for Mass Deportation. From the introduction: 

Donald Trump recently announced his intention to use the Alien Enemies Act of 1798 as a tool for mass deportation of immigrants. The Alien Enemies Act is a component of the notorious Alien And Sedition Acts. It's the only part of that legislation that remains on the books today. Unlike the more sweeping Alien Friends Act, which gave the president broad power to deport and bar any "aliens as he shall judge dangerous to the peace and safety of the United States," and was therefore rightly denounced as unconstitutional by James Madison, Thomas Jefferson, and others, the Alien Enemies Act allows detention and removal only when  there "is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government." In that event, the president is given the power to detain or remove "all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized."

Katherine Yon Ebright of the Brennan Center has an excellent explanation of why the Alien Enemies Act cannot legally be used against migrants from countries with which the US is not at war. Here's her summary of her analysis ...

I agree (with the legal analysis, though perhaps not all the political/policy contentions).  Textually, it's an easy call.  Here's the full relevant text of the Alien Enemies Act of 1798 (emphasis added).

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, 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, and the President of the United States shall make public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies. And the President of the United States shall be, and he is hereby authorized, in any event, as aforesaid, by his proclamation thereof, or other public act, to direct the conduct to be observed, on the part of the United States, towards the aliens who shall become liable, as aforesaid; the manner and degree of the restraint to which they shall be subject, and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those, who, not being permitted to reside within the United States, shall refuse or neglect to depart therefrom; and to establish any other regulations which shall be found necessary in the premises and for the public safety...

Even if the current situation involves an "invasion or predatory incursion," it is not one "perpetrated, attempted, or threatened ... by any foreign nation or government." (It might be a different conclusion if a foreign government were actively promoting illegal migration of its citizens to the United States, but I doubt the facts support such a claim.)  Although Professors Somin and Ebright have considerably more analysis, I don't think more is needed.

I also agree with Professor Somin that courts should not treat the matter, if it comes to them, as a political question.  Here is his discussion:

Despite the strong legal arguments against it, there is a chance Trump could succeed in using the Alien Enemies Act as a tool for detention and deportation. As Ebright notes, courts might rule that the definitions of "invasion" and "predatory incursion" are "political questions" that courts aren't allowed to address. Several previous court decisions have held that the definition of "invasion" in the Constitution is a political question (thereby preventing state governments from invoking broad definitions of invasion under the Invasion Clause of Article IV in order to be able to "engage in war" in war without federal authorization), though many have simultaneously held that an illegal migration does not qualify as "invasion" because an invasion requires a large-scale armed attack (see pp. 20-22 of my amicus brief).

Ebright argues (correctly, I think) that even if the definition of "invasion" is usually a political question, the use of the Alien Enemies Act as a tool for mass detention and deportation of migrants from countries with which the US is not at  war should fall within the exception for "an obvious mistake" or "manifestly unauthorized exercise of power" (Baker v. Carr (1962)). I would add that the entire political question doctrine is an incoherent mess, and courts should not extend it further.

Again, I think the analysis can be more simple.  The question, in my view, isn't whether there is an invasion (which indeed might be a political question, even under the original concept of political questions), but whether it -- whatever it is -- is "perpetrated ... by any foreign nation or government." Since that's clearly not the case, for the reasons Professor Somin says, a court would simply be called on to enforce the statute as written, which is comfortably within the judicial power.

(Of course, for non-textualists, the analysis may be a bit more challenging.)

UPDATE:  Ilya Somin has further thoughts here: More on "Invasion," the Alien Enemies Act, and the Political Question Doctrine.

FURTHER UPDATE:  Andrew Hyman comments:

Putting aside the Alien Enemies Act, the POTUS seems to have very broad deportation authority per other statutes, like 8 USC 1227.  That statute says, “Any alien who at the time of entry …was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable…..Any alien who is present in the United States in violation of this chapter or any other law of the United States, … is deportable.”

Well, sure, but the Alien Enemies Act is more interesting.  (Also it applies -- if it applies at all -- to persons legally present in the U.S. as well.)

FURTHER COMMENT BY ANDREW HYMAN:  

As to the Alien Enemies Act, it was triggered by “any invasion … perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government….”  The last few words indicate that action by a foreign “government” is not necessary, if the “nation” more generally is responsible. Here’s what Vattel wrote on that score: “the nation in general, is guilty of the base attempt of its members….when by its manners or the maxims of its government it accustoms, and authorizes its citizens to…make inroads into the neighboring countries….” Mike mentioned above that the Alien Enemies Act might apply “if a foreign government were actively promoting illegal migration of its citizens to the United States, but I doubt the facts support such a claim….” Vattel indicates that “allowing” rather than “promoting” would suffice, and foreign governments have done so (and have also urged the United States to not strongly oppose the unlawful inroads).