Trump's Immigration Ban: Legal Or Lawless?

Trump's immigration policies have been a source of controversy since his 2016 campaign. During his first term as president, Trump issued an executive order banning the admission of travelers, immigrants, and refugees from seven Muslim-majority nations, which was later expanded to thirteen. This order created instant chaos, sparked international repudiation, and galvanized Americans all over the country.

Trump's immigration policies have been criticized for their cruelty and inhumanity. For example, his zero-tolerance policy resulted in the separation of children from their families. There have also been reports of ICE agents carrying out raids and arresting dozens of workers suspected of being illegal immigrants.

Trump has also been accused of hypocrisy, as his businesses have hired illegal immigrants and he has employed visa programs to source cheap labor.

Trump's immigration policies are expected to become even more extreme and cruel if he wins a second term. He has promised to deport millions of people and restrict legal immigration. He also plans to end birthright citizenship and reinstate family separation at the border.

Trump's Muslim Ban

The order was challenged in the courts, with federal appeals courts ruling against the Trump administration, concluding that the executive order's "stated national security interest was provided in bad faith" and "drips with religious intolerance, animus, and discrimination." However, in a 5–4 decision in June 2018, the Supreme Court allowed the Trump administration to carry out a version of the ban.

Trump has vowed to restore the so-called Muslim ban. He has said that he intends to use an obscure 1798 law with a sordid backstory to speed deportations and has hinted at the possibility of invoking a separate law with roots in the Whiskey Rebellion of 1794 to deploy the military on American soil.

The use of the 1798 Alien Enemies Act to deport immigrants

The Alien Enemies Act of 1798, passed by a Federalist-controlled Congress, was one of four laws enacted as part of the Alien and Sedition Acts. The Act gave the President additional powers to detain non-citizens during times of war.

In 2024, former President Donald Trump announced that if re-elected, he would invoke the Alien Enemies Act to deport non-citizens and dismantle criminal networks. Legal experts have questioned the legality of this, stating that the Act has only been invoked during times of war.

The Act has been invoked three times in history: during the War of 1812, World War I, and World War II. During the latter, President Franklin D. Roosevelt used the Act to issue proclamations to apprehend, restrain, secure, and remove Japanese, German, and Italian non-citizens.

The Act, which has no expiration date, remains in effect as 50 U.S.C. ch. 3.

The use of the 1794 Insurrection Act to deploy the military for deportations

The Insurrection Act of 1792, last amended in 1871, is a series of different statutes that grant the President the authority to deploy military forces inside the United States to suppress rebellion or domestic violence or to enforce the law in certain situations. The Insurrection Act is the primary exception to the Posse Comitatus Act, which prohibits federal military forces from participating in civilian law enforcement activities.

The Insurrection Act has been invoked numerous times throughout American history, including by George Washington and John Adams in response to early rebellions against federal authority, and by Abraham Lincoln at the start of the Civil War.

In the context of immigration, former President Donald Trump has suggested using the Insurrection Act to deploy the military to quell protests, provide security at the southern border, and aid in deportations. Trump has also said that he would invoke the Alien Enemies Act of 1798, which allows the federal government to expedite deportations of citizens of a "hostile nation" in times of war or when an enemy attempts an "invasion or predatory incursion" into the United States.

Legal experts have warned that the Insurrection Act is dangerously vague and in urgent need of reform. The act fails to adequately define or limit when it may be used and instead gives the President significant power to decide when and where to deploy US military forces domestically.

The use of the 1873 Comstock Act to ban abortion drugs

The 1873 Comstock Act is a series of provisions in US federal law that criminalises the involvement of the US Postal Service in conveying obscene, crime-inciting, or abortion-related matter. The Act has been amended multiple times since its enactment, most recently in 1996, and is often associated with US Postal Inspector and anti-vice activist Anthony Comstock.

The Act was applied broadly for much of its history, but its scope has since been narrowed by various court rulings. Modern enforcement is primarily focused on prosecuting child pornography. The most recent conviction under the Act was made in 2021.

The Act has been upheld as constitutional, despite legal challenges on various grounds. However, in the wake of the Supreme Court's 2022 decision to overturn Roe v. Wade, the Act has been increasingly discussed by anti-abortion groups and public figures as a means of curtailing abortion access without the need for new federal legislation.

The Act's abortion-related provisions could be interpreted to ban the mailing of abortion drugs, such as mifepristone and misoprostol, which are used in 63% of abortions in the US. This interpretation has gained some legal momentum, with a federal judge in Texas ruling in 2023 that the Act prohibits sending mifepristone through the mail. This ruling was made in the case of Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, and was partially upheld by the US Court of Appeals for the Fifth Circuit. The case was later appealed to the Supreme Court, but the justices avoided a direct ruling on the Act's applicability to abortion-related articles, instead ruling that the plaintiffs did not have sufficient standing to bring the case.

The Act's abortion-related provisions could be used to target not only individuals who use abortion drugs, but also providers and manufacturers of these drugs. If providers cannot receive restocked supplies through the mail, their ability to perform abortions would be severely impacted.

The Act's abortion-related provisions could therefore be used to effectively shut down abortion access across the US, even in states where it is legal.

The use of the 1807 Alien Enemies Act to deport immigrants

The Alien Enemies Act of 1798 was drafted for wartime and allows the president to detain or deport citizens of an enemy nation, without hearings and based only on country of birth or citizenship. The law was meant to prevent espionage and sabotage but has also been used to deport immigrants who are lawfully present in the US and who have not committed any crimes.

The act was used three times; during the War of 1812, World War I, and World War II, each time targeting immigrants for detention or expulsions. The most well-known use of the law was the internment of Japanese Americans during World War II when Japanese immigrants were stripped of their property and forced into internment camps. Though lesser-known, some German and Italian Americans were also interned during the conflict.

The conditions for invoking the Alien Enemies Act include use during “declared war” or threats of “invasion” of US territory. Because presidents don’t have the authority to declare war, they must wait for Congress to do so. However, there is no such wait if the law is being invoked on the basis of a threatened or ongoing invasion because the president has the authority to respond to sudden attacks.

When it comes to Trump’s threats, the main issue would be what constitutes an invasion. Historically, the term is used to refer to large-scale attacks on the US. Trump and other Republicans, however, have repeatedly referred to an influx of immigration as an invasion and suggested a non-literal invasion of the term could give the president the authority to invoke the act, something that would go against centuries of legislative and judicial precedent that confirm the act is a wartime authority.

Presidents have historically used the law to detain people after conflicts have ended. World War I ended in 1918, but President Woodrow Wilson continued to intern German and Austro-Hungarian immigrants until 1920. After World War II ended in 1945, President Harry S. Truman continued to intern and deport immigrants until 1951, something the Supreme Court upheld.

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