The ugly history behind the obscure law Trump is using for mass deportations

President Donald Trump has invoked an 18th-century wartime law to carry out a large-scale deportation operation.

As he promised on the campaign trail, Trump used the Alien Enemies Act to send hundreds of people with alleged Venezuelan gang ties to El Salvador, ignoring a court order blocking their deportations. The law, passed in 1798 as part of the Alien and Sedition Acts, allows the president to detain and deport noncitizens from countries at war with or invading the US.

Before now, the law had only been used three times in history — during the War of 1812, World War I, and World War II — all of which involved official congressional declarations of war. Trump’s attempt to invoke the law without any such declaration is unprecedented and, according to legal experts, an illegal abuse of power.

“President Trump is now invoking wartime powers during a time of peace to justify rounding up potentially millions of people,” said Amy Fettig, acting co-executive director of the civil rights group Fair and Just Prosecution. “This blatantly unconstitutional and unlawful power grab reveals the Trump administration’s mass deportation agenda for what it is — an authoritarian turn in our nation’s history and a time when the rule of law is under direct threat.”

To justify his invocation of the Alien Enemies Act, Trump has claimed that international criminal gangs, including the Venezuelan Tren de Aragua, are invading the US. That represents not only a break with the law’s past use, but a decision that ignores the now widely acknowledged role the law played in enabling Japanese internment during World War II.

Here’s how the law has been used historically.

President James Madison first used the law to target British citizens in the US during the three-year War of 1812.

A directive from the Madison administration designated British citizens as “alien enemies” and ordered them to report to local authorities and undertake additional duties. If they resisted, they could be deported under the Alien Enemies Act, though it’s not clear how many were ultimately impacted.

In the war, the nascent US, armed with only a small fleet of ships, challenged British interference in American maritime trade, ultimately achieving a draw on the battlefield.

When the US entered World War I in 1917, President Woodrow Wilson imposed a host of restrictions on male German citizens living in the US and, later, on German Austrians and on women from both countries. Those restrictions included a bar on firearms ownership, mandatory registration with the government or law enforcement, and a requirement that Germans apply for permits to live and work in designated restricted zones or to leave the country.

Under the Alien Enemies Act, Wilson also ordered the arrest and detention of Germans who demonstrated “reasonable cause to believe to be aiding or about to aid the enemy” or who violated any presidential regulations.

Over 10,000 people were arrested under the law. Though most of those affected were eventually paroled, many of them experienced job loss as a result.

The last and perhaps most significant time the Alien Enemies Act was invoked was during World War II. In 1941, President Franklin D. Roosevelt used the law to authorize the arrest, detention, and deportation of civilians of primarily Japanese, but also German and Italian, descent.

Though his administration initially only targeted individuals believed to present a threat to US national security, the policy eventually extended to Japanese immigrants and US citizens of Japanese descent broadly.

Some 120,000 of them were sent to concentration camps. They endured inhumane conditions: Many forced to live in livestock pens, without enough food or adequate sanitation. The camps were only emptied out after the war ended in 1946. The US government later apologized for their internment and provided reparations to those of Japanese descent.

However, despite the Alien Enemies Act’s role in that stain on American history, the law remained on the books. President Harry Truman invoked it shortly after the war against a German citizen. A divided Supreme Court allowed him to do so in a 1948 case known as Ludecke v. Watkins, wary of overriding the president on the issue of whether the war was truly over.

After surviving that court challenge, the law was never repealed despite legal experts’ warnings about how it could be abused, ready for Trump to pluck out of obscurity.