Trump deploys the Alien Enemies Act

OPINION:

On Jan. 20, President Trump issued an executive order starkly reminding us that international criminal cartels “have engaged in a campaign of violence and terror throughout the Western Hemisphere that has … flooded the [U.S.] with deadly drugs, violent criminals, and vicious gangs” and that the cartels “functionally control, through a campaign of assassination, terror, rape and brute force nearly all illegal traffic across” our southern border.

A year and a half ago, Mr. Trump’s campaign promised the American people that if elected, he would “invoke the Alien Enemies Act to remove all known or suspected gang members, drug dealers or Cartel Members from the U.S.” On Jan. 20, Mr. Trump took the first step in fulfilling that promise.

What is the Alien Enemies Act? Enacted in 1798, the AEA was designed to prepare us for a feared invasion by France, then in the throes of the French Revolution. Unlike the other infamous “Alien and Sedition Acts,” the AEA received wide bipartisan support, including from Thomas Jefferson and James Madison, and is still good law. It provides that when the U.S. is in a declared war or when “any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the [U.S.] by any foreign nation or government,” all nationals of the hostile nation at least 14 years old (unless having become naturalized citizens) may be summarily “apprehended, restrained, secured, and removed as alien enemies” at the president’s discretion. The statutory procedures and rights normally afforded to aliens, which would make the expeditious removal of large numbers of enemy aliens impossible, do not apply to enemy aliens subject to the AEA. The law has been employed most notably during the War of 1812 and during World Wars I and II and has repeatedly passed muster at the Supreme Court.

After the Trump campaign’s announcement, I investigated whether the AEA could indeed be used to detain and remove foreign gang and cartel members. I fretted about its chances in federal court. After all, the AEA was conceived of in the context of a traditional conflict between nations and can be triggered only by a declared war or an invasion or predatory incursion by a foreign nation or government. Could the nefarious activities of cartels within our country qualify as “invasions” or “predatory incursions”? If so, how could they be considered as carried out by foreign nations or governments?

I concluded that there is indeed a scenario in which a powerful argument can be made that members of transnational criminal cartel and gangs qualify for detention and removal under the AEA.

First off, dusting off old dictionaries makes clear that the undefined term “predatory incursion” is most analogous to a “raid,” which fits quite well with the activities of transnational crime groups.

Second, there are instances in which these criminal organizations have become so entwined with national governments that they can reasonably be considered parts of those governments. Moises Naím, distinguished fellow at the Carnegie Endowment for International Peace, has documented the rise of “mafia states,” in which “criminals have penetrated governments to [the] unprecedented degree” that the governments have, in essence, “taken over their illegal operations,” with “government officials enrich[ing] themselves … while exploiting the money, muscle, political influence, and global connections of criminal syndicates to cement and expand their own power.” Mr. Naim concluded that this has “blurr[ed] the conceptual line between states and non-state actors.” Cartels entwined with these governments should be considered state actors in the context of the AEA. Thus, the criminal acts of these cartels should be considered actions of foreign governments triggering the AEA, thus authorizing the summary detention and removal of their members (so long as they are nationals of the enemy nation).

Mr. Trump’s executive order indicates that he seemingly will focus on using the AEA to combat international cartels in just this “mafia state” scenario. The executive order lays out the case: “In certain portions of Mexico, [cartels] function as quasi-governmental entities, controlling nearly all aspects of society.” They “constitute a national-security threat beyond that posed by traditional organized crime, with activities encompassing … convergence between themselves and a range of extra-hemispheric actors [including] antagonistic foreign governments … [and] infiltration into foreign governments across the Western Hemisphere.”

It then directs the attorney general and the secretary of homeland security to “make operational preparations regarding the implementation of any decision I make to invoke the Alien Enemies Act … in relation to the existence of any qualifying invasion or predatory incursion against the territory of the [U.S.] … and to prepare such facilities as necessary to expedite the removal of those who may be designated under this order.”

This is a very shrewd move by President Trump, preparing a test case of the AEA where he is most likely to prevail at the Supreme Court, at least as an opening gambit. I daresay that President Jefferson, who warred against the Barbary Pirates, would approve.

• George Fishman serves as a senior legal fellow at the Center for Immigration Studies.