Trump's Planned Use of the Alien Enemies Act

Presidential candidate Donald J. Trump: "On my first day back in the White House I will  . . .  invoke the Alien Enemies Act to remove all known or suspected gang members, drug dealers or cartel members from the United States, ending the scourge of illegal alien gang violence once and for all"

The question is just how the Alien Enemies Act could be used to deport aliens who are suspected (by whom, on what standard?) to be gang or cartel members or drug dealers.

 

The operative part of the statute:

[W]henever 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". 50 U.S.C Ch. 3

Clearly, there will not be a declared war on Trump’s first day in office. See US Const., Art. I, Sec. 8, Cl. 11. 

Trump will, doubtless, insist that there is an “invasion or predatory incursion” by the aliens he has in mind (probably even those born in the US, but let that pass). If a band of 100 New Brunswickers charged over the Saint Croix - Vanceboro bridge and pillaged the Vanceboro US Post Office, that would be a predatory incursion. Immigrants, many of whom will make asylum claims, crossing the border at dozens of points or overstaying their visas, and merging into the general population at thousands of locations probably does not constitute a "predatory incursion." Trump wil surely claim that it does, indeed he has had no problems claiming an "invasion." So let's accept this bad interpretation as well, for the sake of argument.

The invasion or incursion, per the statute, must be “perpetrated, attempted, or threatened . . . by any foreign nation or government. Just what nations or governments are they? Specifics are clearly required here. "Foreigners" will not do.

It looks as if Trump’s first candidate government would be that of Venezuela, which Trump has maintained, must have sent the US criminals because its reported crime rate has decreased. There might conceivably be other reasons for a reported drop in crime rates, for example, that it looks better for the regime. Let us, however, be as trusting of the Venezuelan statistics as is Trump. It still must be established that the Venezuelans in question were gotten to the US through the good offices of that country’s government and that said government had the sort of strategic military purposes that would have counted as an “invasion” or “predatory incursion” as those words were understood in 1791.

The gang activities and drug sales Trump alleges would surely not count as an “invasion,” despite Trump’s partiality for that word. However, “predatory incursion” is pretty vague. “Predatory,” yes. “Incursion,” less clear, but perhaps it can be stretched to include at least some travel by Venezuelans into the US for gang and drug related activities.

Venezuelans are not so very numerous in the US, however. Clearly, Trump intends to use the act much more broadly. Again, he used the word “all” and intends this to be nationality inclusive. That would require a showing for the nationality of each alien apprehended, that that nation’s government was sponsoring and supporting an incursion. This would be patently impossible.

Even if it were possible for the nationals of Venezuela or some other country, we would not be saying goodbye even to all its suspected gang or cartel members or drug dealers. All the females will remain as will males yet to turn 14. So maybe Trump’s promised day one Alien Enemies Act roundup won’t end the “scourge . . . once and for all." It might even be that some of the deportees will return. It has been know to happen. A conviction in court for gang activity or drug dealing might better conduce to public safety as well as due process than mass deportation on suspicion.