“I Shot An Arrow Into The Air…”

 CNN:

The Trump administration is expected to invoke a sweeping wartime authority to speed up the president’s mass deportation pledge in the coming days, according to four sources familiar with the discussions.

Will that happen? Will the Alien Enemies Act of 1798 speed up the apprehension and deportation of immigrants in America?

No.

The Alien Enemies Act allows for the detention of persons covered by the act during time of war or when a foreign power is engaged in coordinated “invasion or predatory excursion.” Yeah, Trump wants to claim that, but Elmo wants to claim Social Security is a Ponzi scheme. Neither one of them has the evidence to back up their claims. But that doesn’t mean Trump automatically loses in court if he claims the authority of the Act.

While the case law (such as there is) defers to the Congress/Administration on when a war begins, exists, or ends (a serious consideration in some circumstances), courts can still review the question of whether there is a belligerent foreign power in the picture for purposes of the Act, and whether the individual in question is involved in a plain violation of provisions of the Alien Enemies Act. 

First, even in the middle of the First and Second World Wars, courts were still open to review claims by those detained under the act who challenged whether they were properly within the statute’s scope. Second, and relatedly, although there is no case law about the “invasion or predatory incursion” language, the cases that are out there all tend to read the statute to require that a specific country be identified as the aggressor. Whatever one thinks about the situation along the U.S.-Mexico border, it can hardly be said with a straight face that citizens of a single, foreign country are engaged in a coordinated “invasion or predatory incursion.” That spells real trouble for if and when courts get their hands on habeas petitions by anyone arrested and detained under the act.

Indeed, if this were really a policy debate, there are already plenty of authorities that allow for the arrest and detention (pending removal) of those non-citizens without legal authorization to be in the United States. The issue, at least in recent years, has not been legal authorities; it has been the capacity of the federal government to actually seek out and arrest those who are legally subject to arrest and removal. Relying on an old statute won’t help solve the resources problem. And if the above analysis means anything, it also suggests that the old statute wouldn’t provide a way around judicial review, either. Instead, it seems designed more to appear to be a solution than to be an actual solution—one that has stirred up understandable, if misplaced, comparisons to prior mass detention efforts by the federal government. One suspects it won’t be the last time we hear about this statute—or other plans to rely upon similarly ill-fitting old statutes.

Invoking the statute is kind of pointless, IOW. It doesn’t put the actions of the administration beyond judicial review, and it doesn’t give them powers they don’t already have.  It certainly doesn’t give Trump manpower (literally, boots on the ground). Mainly, Trump’s problem remains: not enough manpower to arrest all the immigrants he wants to, and frankly, not enough competence. Biden was detaining and deporting more people than Trump has yet managed to round up. Of course Biden didn’t have an Homeland Security Secretary doing cosplay with her makeup and hair beauty queen perfect, while complaining about leaks by telling the microphones precisely what information was leaked. 🤦‍♀️ And Trump’s quit being so public about his awesome round up powers because of that. He made a big noise about sending immigrants to Gitmo. That cost so much and produced so little, he’s been hoping nobody noticed he brought them all back.

Efficiency!!!!

The situation is not good, but Trump is not (to his annoyance) making it measurably worse. And the Alien Enemies Act is not really even an arrow in his quiver.

Nor is he much of an archer.