CNN
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President-elect Donald Trump is preparing to wipe out a centuries-old set of laws and legal theories to advance his first-year agenda, particularly borders and birthright citizenship. A path to the Supreme Court where we hope history will be on our side when the inevitable legal questions become serious questions.
The president-elect has said he intends to use an obscure 1798 law with a sordid backstory to hasten deportations, and invoked another law with roots in the Whiskey Rebellion of 1794 to bring troops onto American soil. hinted at the possibility of deployment.
Immigration is not the only policy being implemented. Some of his allies, including Vice President-elect J.D. Vance, have advocated enforcing the Chastity Act of 1873, which would ban the mailing of abortion pills.
President Trump has argued that the law harkens back to a more active era in American politics, using the power of the law signed by Presidents John Adams and Thomas Jefferson to attack “enemies from within.” The government has suggested the possibility of mass deportation of illegal immigrants. immigration.
“Think about it: We should have gone back to 1798,” Trump told a conservative rally in Georgia just days before the November election. “At that time, we had effective laws.”
But at least some of the authorities Trump is trying to claim have a troubled history. And its activation would await a confrontation with the unpopular 6-3 conservative Supreme Court, which has been noted for its willingness to act as a guardrail for the new administration.
“Trump’s style is, ‘Get out of my way,'” said William Banks, a Syracuse University law professor and expert on insurrection law.
Banks said the 1807 law gives the president “sufficient discretion to drive truckloads” of requirements for deploying the military in the country, such as immigration enforcement.
“This law allows him to do a lot of things himself with very few procedural hurdles,” Banks added.
During his campaign, Trump specifically vowed to invoke the Alien Enemies Act of 1798 to “target and dismantle any immigrant criminal network operating on American soil.” The law allows the federal government to facilitate the deportation of nationals of “hostile countries” in times of war or if an enemy attempts “invasion or predatory intrusion” into the United States.
“We had to go back this far because we didn’t play games back then,” Trump said at a rally in November.
The idea that immigrants entering the U.S. constitutes an “invasion” is pervasive among some legal conservatives, especially in the context of birthright citizenship, another example of what President Trump has vowed to defeat. These are two historic principles. But experts predict the next president will have a hard time defending the law in court, in part because of the history of how it has been used.
The Alien Enemies Act was last used to imprison Japanese and others during World War II, and the internment of Japanese Americans (upheld by the Supreme Court in a controversial 1944 decision) became a pioneer.
“If you look at its history, this law is clearly a wartime power, and it’s not a good idea to let the president exercise this power outside of wartime,” said Katherine Yon Ebright, a consultant in the Brennan Center’s Freedom and National Security Program. is a clear abuse.” A wide range of legal topics has been written.
But Ebright and others cautioned that it’s unclear whether courts will block Trump’s peacetime use.
The Supreme Court last considered the Alien Enemy Act in 1948, giving President Harry Truman broad deference to when it could invoke the law. President Truman had called for the expulsion of German citizens, and an appeal reached the Supreme Court three years after the end of World War II.
The court at the time held that the war did not necessarily end “when the shooting stopped.”
Some conservatives are hopeful that the incoming Trump administration will implement an 1873 law that bans the mailing of “obscene” and “indecent” material. The Comstock Act has been denounced as a “zombie law” by critics, but anti-abortion advocates see it as a way to ban the mailing of abortion pills.
Medication abortions account for nearly two-thirds of all abortions in the United States.
President Trump told CBS News in August that “generally speaking” he would not use the law to ban mail-in abortion pills. Still, there will likely be pressure on the Justice Department to undermine the Biden administration’s position on the issue. Biden’s Justice Department issued an internal memo in 2022 stating that the Comstock Act does not prohibit mailing abortion pills if the recipient does not intend for “illegal use.”
President Trump told NBC in early December that he “probably” would not restrict access to abortion pills, but that “things will change.”
According to the Washington Post, Vance, then a Republican senator from Ohio, was one of several Republican senators to sign a letter calling the memo “unfortunate” and calling for its “immediate retraction.” It was a person.
The Supreme Court sidestepped this issue in June in a related opinion addressing the Food and Drug Administration’s decades-long approval of the abortion drug mifepristone. But during oral arguments in the case in March, it was clear that at least two conservatives, Justices Clarence Thomas and Samuel Alito, were interested in the issue.
“This is a remarkable provision,” Alito said. “This is not a vague part of a complex and vague law.”
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President Trump has repeatedly flirted with using the military for domestic purposes, including during his first term. In an interview with Time magazine earlier this year, he discussed using the military and National Guard to help deport millions of illegal immigrants.
Mr. Trump will likely have to rely on the Insurrection Act to carry out these policies, since federal forces are generally barred from civilian law enforcement.
The current version of the law was last invoked by President George H.W. Bush during the 1992 Los Angeles riots, when four white police officers were acquitted in the Rodney King beating.
Regarding a complete ban on the use of military in the country, President Trump said in another post-election interview, “If it’s an invasion of our country, we can’t stop the use of the military, and I consider this an invasion of our country.” ” he told Time. “According to the laws of our country, we will go as far as we are allowed to go.”
The best-known use of the Insurrection Act was in 1957, when President Dwight Eisenhower federalized the Arkansas National Guard and sent the 101st Airborne Division to Little Rock to integrate schools. The order followed the Supreme Court’s historic decision three years ago in Brown v. Board of Education, which declared segregated schools unconstitutional.
The Supreme Court has typically deferred to the president on whether to invoke the law.
“There’s not a lot of historical precedent for interpreting laws like the Insurrection Act,” Banks said. “That’s because, ironically, the courts give presidents wide leeway to decide when they need to use the military and when they don’t need to use the military.”
President Trump is also keen to revive an old battle over birthright citizenship. The dispute has been legally settled since 1898, when the Supreme Court ruled that people born on U.S. soil are citizens even if their parents were not.
The president-elect has long railed against birthright citizenship, which is protected by the 14th Amendment.
Still, his allies are considering directing the State Department to deny passports to children of undocumented parents and tighten tourist visa requirements to crack down on “birth tourism.” A person familiar with the project told CNN in December. Denying passports to people born in the United States would trigger immediate lawsuits.
President Trump said last year that long-standing protections for people born in the country are “based on a historical myth and a deliberate misinterpretation of the law.”
But legal experts on both ends of the political spectrum believe history is against Trump.
Professor Rogers Smith of the University of Pennsylvania said, “If the Supreme Court were to stick to a ‘history and tradition’ approach, it would not uphold an executive order denying birthright citizenship to the children of illegal aliens. ” he said. “There is no history or tradition to support such executive action; there is a long history and tradition to recognize such children as citizens with a birthright.”
