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The challenge Trump could face in trying to use the Alien Enemies Act in a second term

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The challenge Trump could face in trying to use the Alien Enemies Act in a second term

Donald Trump said he wants to use a 1798 law “to target and dismantle every migrant criminal network operating on American soil.”

But a second Trump administration’s mass detention and deportation efforts could face difficulty if attempted under that wartime law, known as the Alien Enemies Act or Alien Enemy Act.

The law says:

Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.

That language reflects a potential problem with the Republican presidential nominee’s proposal: It’s not tied to a declared war or an invasion or predatory incursion by another country.

Congress (not the president) has the power to declare war. And while Trump and other politicians have used invasion-type language when talking about immigration, that doesn’t turn the actions of people from other countries into actions taken by other countries. It’s a wartime law, and there isn’t a war.

That doesn’t mean the law hasn’t been abused and couldn’t be again, as this Brennan Center analysis explains regarding the statute, which Democrats have proposed repealing.

It’s a wartime law, and there isn’t a war.

Nor can we be sure what would happen if an enforcement attempt landed at a Supreme Court that has taken an expansive view of presidential power — especially if Trump and Republicans are able to further shape the court. Given the tension between Trump’s stated plan and the text of the law, his best hope in that scenario might be that the Roberts Court deems it the sort of “political question” that courts refuse to resolve (while effectively resolving the challenged action against the challenger). Even on that legal terrain, however, a Trump victory wouldn’t be guaranteed.

What’s more certain is that Trump’s recent invocation of the 18th-century law wasn’t a random musing, and (relatedly) it wasn’t the first time he has mentioned the act. So if he wins in November, we could soon find out how far the high court will let him go on this front.

Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.

Jordan Rubin

Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro,” a book about the secret war on synthetic drugs. Before he joined BLN, he was a legal reporter for Bloomberg Law.

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Politics

Hageman launches bid for Wyoming Senate seat

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Wyoming GOP Rep. Harriet Hageman on Tuesday announced her campaign for Senate, hoping to succeed retiring Republican Sen. Cynthia Lummis in next year’s election.

The Wyoming Republican is a strong supporter of President Donald Trump, and with his backing she helped oust Republican then-Rep. Liz Cheney, a vocal critic of Trump’s, in the 2022 primary.

“This fight is about making sure the next century sees the advancements of the last, while protecting our culture and our way of life,” Hageman said in her launch video. “We must dedicate ourselves to ensuring that the next 100 years is the next great American century.”

Lummis announced she would not seek reelection last week, saying she felt like a “sprinter in a marathon” despite being a “devout legislator.” Hageman, who had been debating a gubernatorial bid, was expected to enter the Senate race.

Hageman touted her ties to the president in her announcement video, highlighting her record of support for Trump’s policies during her time in the House and vowing to keep Wyoming a “leader in energy and food production.”

“I worked with President Trump to pass 46 billion in additional funding for border security, while ensuring that Wyomingites do not pay the cost of new immigration. We work together to secure the border and fund efforts to remove and deport those in the country illegally,” she said.

Trump won the deep-red state by nearly 46 points in last year’s election, and Hageman herself was reelected by nearly 48 points, according to exit polling.

Still, Hageman bore the brunt of voters’ displeasure earlier this year during a town hall. As she spoke of the Department of Government Efficiency, federal cuts and Social Security, the crowd booed her.

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Ben Sasse says he has stage 4 pancreatic cancer

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Former Sen. Ben Sasse announced on Tuesday that he has been diagnosed with stage 4 metastatic pancreatic cancer.

The Nebraska Republican shared the news on X, writing in a lengthy social media post that he had received the diagnosis last week.

“Advanced pancreatic is nasty stuff; it’s a death sentence,” Sasse said. “But I already had a death sentence before last week too — we all do.”

The two term senator retired in 2023 and then went on to serve as president of the University of Florida. He eventually left the school to spend more time with his wife, Melissa, after she was diagnosed with epilepsy.

Sasse continued to teach classes at University of Florida’s Hamilton Center after he stepped down as president. He previously served as a professor at the University of Texas, as an assistant secretary at the Department of Health and Human Services and as president of Midland University.

Sasse on Tuesday shared that he and his wife have only grown closer since and opened up about his children’s recent successes and milestones.

“There’s not a good time to tell your peeps you’re now marching to the beat of a faster drummer — but the season of advent isn’t the worst,” Sasse said. “As a Christian, the weeks running up to Christmas are a time to orient our hearts toward the hope of what’s to come.”

Sasse said he’ll have more to share in the future, adding that he is “not going down without a fight” and will be undergoing treatment.

“Death and dying aren’t the same — the process of dying is still something to be lived. We’re zealously embracing a lot of gallows humor in our house, and I’ve pledged to do my part to run through the irreverent tape,” Sasse said.

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Cannon keeps Jack Smith’s classified records report under wraps for now

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Cannon keeps Jack Smith’s classified records report under wraps for now

U.S. District Judge Aileen Cannon on Monday lifted restrictions on the release of former special counsel Jack Smith’s findings from his investigation into President Trump’s handling of classified records — but she gave the president a 60-day window to challenge her order. Cannon did not immediately lift her order barring the Justice Department from sharing…
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