Trump Immigration and Deportation Plan Primer: The Foreign Enemies Act

Ron Chapman is a Federal Defense Attorney and Author of Unraveling Federal Criminal Investigations. He’s spent a career beating the DOJ’s most difficult cases for his clients.

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Donald Trump’s Plan to Use the Foreign Enemies Act for Mass Deportations Sparks Legal Debate

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Donald Trump’s reported plan to invoke the Foreign Enemies Act to deport undocumented immigrants has reignited debate over the scope of presidential power in immigration enforcement. The Act, originally passed in 1798, gives the President sweeping authority to detain or deport nationals of enemy states during wartime. Yet, with robust immigration laws already in place that allow for the detention and removal of undocumented individuals, the need to invoke a centuries-old wartime measure may not be necessary and raise unnecessary 4th Amendment concerns.

The Fourth Amendment protections against unreasonable searches and seizures create additional barriers to identifying undocumented individuals without probable cause, underscoring how far Trump’s proposed plan might stretch constitutional limits.

Other presidents, including Bill Clinton, Barack Obama, and George W. Bush, have aggressively enforced immigration laws without recourse to such historic measures, utilizing the powers granted under the Immigration and Nationality Act (INA). In light of these precedents, Trump’s proposal seems unnecessary given existing federal authority and sets a potentially troubling precedent for executive overreach.

Historical Context and Purpose of the Foreign Enemies Act

The Foreign Enemies Act, one of the four Alien and Sedition Acts of 1798, emerged from the intense political climate of the late 18th century. Congress and President John Adams, influenced by tensions with France and domestic fears of foreign influence, passed the Act to give the President authority to expel or detain nationals from enemy countries during wartime. While initially aimed at French nationals during the Quasi-War, the Act’s purpose was to protect the fledgling republic from threats posed by foreign nationals believed to be hostile to the U.S. The Act’s broad scope allowed for detention, surveillance, and deportation, aiming to counter-espionage and sabotage threats in times of national crisis.

Since then, the Foreign Enemies Act has only been invoked during significant wars, most notably World Wars I and II. Under Presidents Wilson and Roosevelt, the Act justified the detention of German, Italian, and Japanese nationals, though its most controversial use remains the internment of Japanese Americans during World War II. This wartime application highlights the Act’s function as a national security tool rather than an immigration enforcement mechanism. The circumstances of its historical use underscore its design for extraordinary wartime crises, not peacetime immigration policy.

Comparison with the Immigration and Nationality Act

The Immigration and Nationality Act (INA), enacted in 1952 and amended extensively since, already grants sweeping powers to federal agencies to address unauthorized immigration. The INA empowers immigration authorities to detain and deport individuals based solely on unlawful presence in the U.S., distinguishing it from the Foreign Enemies Act’s purpose of addressing national security threats. The INA provisions for illegal entry under 8 U.S.C. § 1325 and for reentry after deportation under 8 U.S.C. § 1326 allow federal agents to prosecute and remove undocumented individuals without additional wartime powers.

Other presidents have robustly enforced these provisions. President Bill Clinton, for example, oversaw a surge in immigration enforcement, implementing Operation Gatekeeper to strengthen the U.S.-Mexico border and reduce illegal entry. President Obama expanded this approach, prioritizing the deportation of criminals while still prosecuting record numbers of undocumented immigrants. By 2022, over 45,000 cases of illegal entry were prosecuted under INA laws, demonstrating the INA’s capacity to address undocumented immigration comprehensively. Unlike Trump’s proposed plan to use the Foreign Enemies Act, past presidents have managed immigration challenges without invoking wartime powers.

Why is Trump Seeking to Use the Foreign Enemies Act?

Police in the United States cannot simply stop people and demand their papers. This is a Fourth Amendment violation. The Supreme Court has long recognized that when a person is away from the border, the Government does not have the ability to make the primary purpose of a stop the identification of the individual stopped. The Foreign Enemies Act circumvents the 4th Amendment, but the problem still remains, identification of the individual. i believe this act would streamline deportation so that immigration courts are circumvented but that also means that protections afforded by these courts to undocumented immigrants are also not provided.

Fourth Amendment Concerns and the Challenges of Identifying Undocumented Individuals

A central challenge in identifying undocumented individuals under Trump’s plan would involve balancing immigration enforcement with Fourth Amendment protections. The Fourth Amendment protects against unreasonable searches and seizures, limiting the ability of law enforcement to demand identification or inquire into immigration status without probable cause. Supreme Court cases such as Terry v. Ohio (1968), Hiibel v. Sixth Judicial District Court of Nevada(2004), and Arizona v. United States (2012) restrict police from stopping individuals without reasonable suspicion of criminal activity.

In Terry v. Ohio, the Supreme Court established that police may stop someone if they have "reasonable suspicion" that the individual is involved in criminal activity. This requires specific facts, not mere suspicion. Terry allows officers to conduct limited pat-downs and ID checks if they suspect a crime, but it does not permit stops solely based on immigration status.

In Hiibel, the Court ruled that officers may require individuals to state their names during a legitimate stop where reasonable suspicion exists. While the ruling permits ID requests in “stop-and-identify” states, it still requires an initial basis for suspicion. If an officer stops someone based solely on their appearance or suspicion of undocumented status, that alone is insufficient under Hiibel without additional suspicion of criminal activity.

Finally, Arizona v. United States upheld a provision allowing police to inquire about immigration status during lawful stops if there is a valid reason for the initial stop. Officers cannot detain someone just to investigate immigration status; they need independent reasonable suspicion of a criminal act, and any ID request must not prolong the stop unreasonably. In short, Arizona upheld the principle that ID checks must be incidental to lawful stops rather than a primary purpose.

How a Stop and Detention of an Undocumented Immigrant Could Play Out

If a police officer encounters an individual they suspect is undocumented, they must first have reasonable suspicion of criminal activity beyond immigration status to conduct a stop legally. For example, if a person is involved in a traffic violation, the officer has a basis for the stop and may ask for ID in states with “stop-and-identify” laws. If the individual’s identification is lacking or leads to further reasonable suspicion, the officer may inquire about immigration status—but cannot detain the individual solely based on suspected undocumented status.

Without reasonable suspicion of another crime, stops based on perceived immigration status alone would likely violate Fourth Amendment protections. If Trump’s plan is to be implemented, the complexities of balancing these constitutional protections with immigration enforcement may lead to significant legal challenges regarding stops, searches, and detentions.

The Foreign Enemies Act is Unnecessary for Strict Enforcement

In light of the INA’s existing powers, Trump’s plan to invoke the Foreign Enemies Act for deportation appears to be a drastic step that would expand presidential power beyond its historical scope. The Foreign Enemies Act was designed to address wartime threats, not as a peacetime immigration enforcement tool. With past presidents enforcing strict immigration policies under the INA’s framework, Trump’s plan to invoke wartime powers seems both redundant and constitutionally risky. The Fourth Amendment’s protections and existing immigration laws provide adequate means for deporting undocumented individuals without invoking emergency powers. In contrast to Clinton’s and Obama’s approaches, Trump’s proposal risks unnecessary expansion of executive power over immigration enforcement, a move that may ultimately provoke more legal challenges than it resolves.

Questions and Answers: Knowing Your Rights if Stopped or Detained When Asked for Identification

Q: Can police ask me for my ID just because they suspect I’m undocumented?

A: No. Police cannot stop you solely because they suspect you are undocumented. They need a reasonable suspicion of criminal activity to stop and question you. In states with “stop-and-identify” laws, they may ask for ID if there is a valid reason for the stop, but not based on immigration status alone. it is important to note that this does not apply at a border crossing or a border crossing checkpoint a reasonable distance from the boarder.

Q: What should I do if an officer asks for my ID during a traffic stop?

A: During a lawful traffic stop, officers may ask for ID as part of the stop. If you have a driver’s license or other ID, you should provide it if asked. However, you have the right to remain silent regarding questions about your immigration status. Remember, officers cannot extend the stop just to investigate your status without probable cause.

Q: What if I am stopped and don’t have identification with me?

A: If you are in a “stop-and-identify” state, police can request your name during a valid stop. If you don’t have physical ID, you can verbally state your name. Refusing to provide a name in these states could lead to arrest, so it’s often best to comply with the basic information request.

Q: Do I have to answer questions about my immigration status?

A: No. You have the right to remain silent. While police may inquire about your immigration status during a lawful stop, you do not have to answer. In most cases, it’s best to politely assert your right to remain silent if asked about your status.

Q: What should I do if I feel my rights have been violated?

A: If you believe your rights were violated, it’s important to document the details of the incident, including the officer’s name and badge number, and contact an attorney. Remember to remain calm and avoid confrontation during the stop.