Mikaela DesLauriers | 8 July 2024

Summary

• Former President Donald Trump (Trump) is proposing using the 1798 Alien Enemies Act to expedite mass deportations of migrants from the United States (U.S.). 

• Historically reserved for wartime measures against nationals of hostile nations, Trump’s intended application of the 18th century Act presents significant legal and civil rights challenges due to its unprecedented peacetime application and potential strain on judicial interpretation.

• This deportation strategy could severely impact the public and private sectors, exacerbating federal resource limitations and risking economic consequences in immigrant-reliant industries, while also raising concerns about civil liberties and public trust in law enforcement.

If Trump wins the Presidential election, it can be attributed in part to Americans embracing his rhetoric that the U.S.’s immigration system is “broken.” The Alien Enemies Act of 1798, an archaic statute, is central to current political debates surrounding Presidential candidate Trump’s proposed mass deportation strategy. At campaign rallies across the U.S., Trump has suggested invoking this act to justify the removal of undocumented migrants, especially targeting alleged gang members and criminal networks. This move marks a significant departure from prior internment-based applications of the Aliens Enemies Act, which was last invoked during World War II against German, Italian, and Japanese nationals. By framing illegal immigration as an “invasion,” Trump seeks to expand the act’s wartime scope to include perceived domestic threats. However, legal experts highlight the language in the 18th century Act does not clearly support Trump’s proposed use for mass deportations, particularly in a peacetime context and without a declared war or “predatory incursion” by a nation-state against the U.S. 

The political risks of this approach span the public and private sectors. For U.S. citizens, invoking the Alien Enemies Act in peacetime poses a civil rights dilemma, particularly as modern interpretations of constitutional protections, including due process, stand in opposition to Trump’s proposed application. The Aliens Enemies Act is also the only remaining law from the four Alien and Sedition Acts, passed in the 18th amid fears of war with France which strengthened citizen requirements, criminalised anti-government statements, and empowered the President to deport non-citizens. 

From a legal perspective, this unprecedented use could catalyze extensive litigation from civil liberties organizations mobilised to protect the rights of affected individuals. Should the policy comes under judicial scrutiny, American courts may need to address complex questions of executive authority in immigration enforcement, setting new legal precedents. Additionally, redefining immigration as an “invasion” could lead to significant backlash among immigrant communities, potentially damaging trust in law enforcement and fostering an atmosphere of fear. 

For the public sector, implementing this policy would strain federal resources (removals costing an average of USD 10,854 per person). Enforcing a mass deportation strategy, even with existing immigration laws, is limited by practical constraints, including insufficient resources and the limited capacity of U.S. Immigration and Customs Enforcement and immigration courts, which already face significant backlogs. Legal scholars argue that while the Alien Enemies Act theoretically offers streamlined deportation authority, this authority cannot compensate for the logistical and fiscal demands of mass deportation. Current estimates suggest that the cost of a one-time mass deportation operation is USD 315 billion. The long-term costs of mass deportation operations raise questions about the feasibility of funding an immense expansion of detention facilities and immigration processing centers in a divided Congress. 

The private sector could experience considerable economic repercussions. Industries reliant on migrant labour, such as agriculture, construction, and hospitality, may face severe labour shortages if large-scale deportations proceed. This labour displacement could lead to increased production costs, reduced productivity, and a potential inflationary impact on U.S. goods and services. 

Forecast

• Short-term

  • Immigration and border security will likely remain a defining and divided issue in next week’s U.S. presidential election. 

  • Increased legal challenges are expected if Trump is elected President and his administration attempts to invoke the Alien Enemies Act for mass deportations. Civil liberties organisations and immigrant advocacy groups will mobilise rapidly, leading to extensive litigation.

  • Businesses should prepare for the potential implications of court rulings on immigration enforcement and anticipate changes in workforce dynamics, particularly in immigrant-reliant sectors.

• Medium-term 

  • Mass deportations are highly likely to impact labour shortages, particularly in agriculture, hospitality, and construction. This risks inflating consumer prices, and certain supply chains could be disruptions if mass deportations proceed or if immigrant workers fear deportation.

• Long-term

  • Depending on how the courts rule on Trump’s interpretations of the Alien Enemies Act, a shift in U.S. immigration policy could redefine executive authority over immigration. Potentially leading to more restrictive laws and influencing global relations with immigration-dependent economies, such as Mexico and Venezuela, or setting a strong precedent on the limits of executive authority over immigration and bolstering protections for immigrants.