How Trump is banking on 18th century laws for his promises on borders and citizenship

CNN-

President-elect Donald Trump is preparing to dust off a series of centuries-old laws and legal theories to guide his freshman curriculum, particularly on borders and citizenship rights, hoping history will be on his side when the inevitable legal challenges arise. the Supreme Court.

The new president said he intended to use an obscure 1798 law with a sordid history to speed up deportations and hinted at the possibility of invoking a separate law with roots in the Whiskey Rebellion. 1794 to deploy the army on American soil.

Immigration isn't the only policy at stake: Some of his allies, including Vice President-elect JD Vance, have advocated for enforcing an 1873 chastity law that could ban the shipment of abortion drugs by post.

Trump presented the laws as a reminder of a more muscular era in American politics, suggesting he could use the powers written into law by Presidents John Adams, Thomas Jefferson and others to confront the enemy of interior and carry out mass expulsions of undocumented immigrants.

Think about it: We had to go back to 1798, Trump said at a conservative rally in Georgia days before the November election. That’s when we had effective laws.

But at least some of the authorities Trump is preparing to claim have a storied history and invoking them will lead to clashes with an unpopular 6-3 conservative Supreme Court, which is closely watched for its appetite to serve as a guardrail against the new administration.

Trump's style is to stay out of my way, said William Banks, a law professor at Syracuse University and an expert on the Insurrection Act.

The 1807 law, Banks said, gives the president enough leeway to drive a truck to meet his requirements for deploying the military to his country, such as for immigration control.

This act allows him to do many things on his own, Banks added, with very few procedural obstacles.

During his campaign, Trump specifically pledged to invoke the Alien Enemies Act of 1798 to target and dismantle all migrant criminal networks operating on U.S. soil. The law allows the federal government to expedite expulsions of citizens of a hostile nation during times of war or when an enemy attempts an invasion or predatory incursion into the United States.

That's how far back we had to go, because in those days we weren't playing games, Trump said at a rally in November.

The idea that migrants entering the United States represent an invasion has gained traction among some legal conservatives, particularly in the context of birthright, another historic principle that Trump has promised to overturn. But experts say the new president will face an uphill battle defending the law in court, in part because of the history of how it has been used.

The Alien Enemies Act was last used during World War II to imprison Japanese nationals and others, a precursor to the internment of Japanese American citizens (which the Supreme Court upheld in a ruling controversial 1944).

The law, by its history, very clearly constitutes wartime authority and so allowing a president to use that authority outside of wartime would be a clear abuse, said Katherine Yon Ebright, a lawyer for the Liberty Program. and national security of the Brennan Centers, who has written extensively. on the law.

But Ebright and others cautioned that it was unclear whether the courts would intervene to prevent Trump from using it in peacetime.

When the Supreme Court last considered the Alien Enemies Act, in 1948, it gave President Harry Truman great deference in deciding when the law could be invoked. Truman had sought to deport a German national, and the appeal reached the Supreme Court three years after the end of World War II.

The war, the court reasoned at the time, is not necessarily over when the shooting stops.

Some conservatives hope the new Trump administration will enforce an 1873 law banning sending obscene and indecent materials through the mail. Decried by critics as a zombie law, the Comstock Act is seen by abortion advocates as a tool that could be used to ban the mailing of abortion medications.

Medication abortions account for nearly two-thirds of all abortions in the United States.

Trump told CBS News in August that he generally would not use the law to ban the shipment of abortion drugs. And yet, pressure will likely be brought to bear on his Justice Department to weaken the Biden administration's position on this issue. Biden's DOJ issued an internal memo in 2022 concluding that the Comstock Act does not prohibit the mailing of abortion medications when the recipient does not intend to use them illegally.

Trump told NBC in early December that he probably wouldn't try to restrict access to abortion drugs, but said things were changing.

Vance, then a Republican senator from Ohio, was one of several Republicans who signed a letter describing the memo as disappointing and calling for its immediate rescission, according to the Washington Post.

The Supreme Court sidestepped the issue in a related opinion in June that addressed the Food and Drug Administration's approval of mifepristone, a decades-old abortion pill. But it became clear during oral arguments in the case in March that at least two conservative Justices Clarence Thomas and Samuel Alito were interested in the issue.

This is an important provision, Alito said. This is not an obscure subsection of an obscure and complicated law.

The little-known story of this historic photo

Trump has repeatedly flirted with using the military for domestic purposes, including during his first term. In an interview earlier this year with Time magazine, he discussed using the military or National Guard to help deport millions of undocumented immigrants.

Since federal armed forces generally cannot enforce civilian law, Trump would likely have to rely on the Insurrection Act to carry out such a policy. The current version of the law was last invoked by President George HW Bush during the 1992 Los Angeles riots, which followed the acquittal of four white police officers following the beating of Rodney King.

The blanket ban on the use of the military domestically doesn't stop the military if it's an invasion of our country, and I consider it an invasion of our country, Trump said to Time in another interview after the election. Well, go as far as I'm allowed to go, according to the laws of our country.

The most famous use of the Insurrection Act came in 1957, when President Dwight Eisenhower federalized the Arkansas National Guard and sent the 101st Airborne Division to Little Rock to integrate its schools. This order followed the Supreme Court's landmark decision three years earlier in Brown v. Board of Education, which declared segregated schools unconstitutional.

The Supreme Court generally defers to the president's judgment in invoking the law.

There isn't much historical precedent for interpreting laws like the Insurrection Act, Banks said. And the reason, ironically, is that the courts have given the president so much leeway to decide when it is or is not necessary to use the military.

Trump also wants to reopen an old fight over the right to citizenship, a right settled since the Supreme Court ruled in 1898 that people born on American soil are citizens, even if their parents are not.

The president-elect has long denounced the right to citizenship, protected by the 14th Amendment.

Still, his allies are considering ordering the State Department to deny passports to children of undocumented parents and strengthening tourist visa requirements to crack down on birth tourism, close sources told CNN in December of the project. Denying passports to people born in the United States would trigger immediate legal action.

Last year, Trump described longstanding protections for the native-born as based on historical myth and a willful misinterpretation of the law.

But legal experts on both sides of the political spectrum say history would work against Trump.

If the Supreme Court sticks to its historic and traditional approach, it will not uphold an executive order denying citizenship rights to the children of unauthorized aliens, said Rogers Smith, a professor at the University of Pennsylvania. There is no history or tradition supporting such executive action, and there is a long history and tradition of recognizing these children as birthright citizens.

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