To speed deportations, Trump revives rarely used laws
Homeland Security Secretary Kristi Noem speaks in Washington, April 9, 2025. President Donald Trump has directed Ms. Noem and other administration officials to rely on several rarely used laws to enforce a mass deportation campaign.
Alex Brandon/AP
In its hard-driving push to toughen immigration policy, the Trump administration has found an unusual ally: old and at times rarely enforced laws that can be used to further its goals.
From an 18th century wartime authority to a World War II-era registration law, President Donald Trump is relying on a wide range of legal powers already on the books. The laws have become prominent tools in his effort to rapidly achieve major changes, including a pledged mass deportation of unauthorized immigrants.
How far he can push that executive power in the courts remains to be seen. Detractors argue some of his actions are unconstitutional. The government contends that judges are overstepping their role by holding the White House back.
Why We Wrote This
President Donald Trump鈥檚 controversial immigration actions are possible partly because he is enforcing already existing, but rarely used, laws. Supporters see this strategy as common sense, while critics view it as pushing executive power too far.
Courts have given presidents broad discretion over immigration and national security matters, but presidents of both parties have still struggled to deport most of the unauthorized population. Critics, and some courts, have said that Mr. Trump is now going too far. Trump officials counter that they are simply enforcing the law. The latest example is a revived mandate that immigrants register with the government, which went into effect Friday.
鈥淧resident Trump has made a promise to the American people鈥� to remove immigrants deemed threats to the country, Tom Homan, the country鈥檚 鈥渂order czar,鈥� Fox & Friends last month. 鈥淚 don鈥檛 care what the judges think. I don鈥檛 care what the left thinks. We鈥檙e coming.鈥�
Some moves, like invoking the Alien Enemies Act of 1798, were foreshadowed on the campaign trail. Others, like plans to revive the immigrant registration requirement, were inked on Inauguration Day. The administration has notched one legislative victory on immigration so far 鈥� the , passed with bipartisan support. Otherwise, Mr. Trump has largely leaned on executive discretion to enforce laws used by presidents past.
鈥淚t appears that the Trump administration is attempting to use all of the tools left in the toolbox to assist in deporting, excluding, and surveilling foreign nationals,鈥� writes Julia Rose Kraut, author of 鈥淭hreat of Dissent: A History of Ideological Exclusion and Deportation in the United States,鈥� in an email.
A matter of enforcing the 鈥渓aws on the books鈥�?
Living in the United States without authorization is not a crime. But it is considered a civil violation, which can be penalized by deportation.
At the same time, there are immigration-related crimes that the government can prosecute, such as entering or reentering the country illegally. The extent to which an administration prosecutes these crimes depends on its priorities. Mr. Trump is moving fast, but within his mandate, supporters say.
鈥淭he media and the left and others are criticizing the Trump administration for doing what the federal government should do, which is enforce the laws on the books,鈥� says Cooper Smith, director of communications and adviser to the Center for Homeland Security and Immigration at the America First Policy Institute.
Congress can change those laws if it wants to, he notes, but lawmakers haven鈥檛 united on a major immigration overhaul in decades. Last year, Mr. Trump opposed bipartisan border legislation, which then . That void has resulted in presidents wielding more executive action on immigration matters 鈥� and confronting the stops and starts of litigation that follow.
鈥淭he executive gets a lot of deference, a lot of discretion, a lot of leeway, but it鈥檚 not endless,鈥� says Amanda Frost, professor at the University of Virginia School of Law.
Case in point: In 2018, the Supreme Court ultimately a version of what鈥檚 known as Mr. Trump鈥檚 travel ban. But the justices assumed that a into the U.S. couldn鈥檛 鈥渆xpressly override鈥� other parts of immigration law. The current administration has reportedly been mulling a .
Relying on a 1798 wartime authority
The Alien Enemies Act of 1798 gives the president the power to deport individuals from the U.S. when the country is at war or an invasion is threatened by a 鈥渉ostile nation.鈥� The act had been invoked three times over the past two centuries 鈥� during the War of 1812, and during the two world wars.聽聽
Mr. Trump has invoked this wartime authority to detain and deport Venezuelan men his government says are members of Tren de Aragua, a gang that his administration has designated as a foreign terrorist organization.
In its first use of the act, the Trump administration began to deport Venezuelans to an El Salvador prison in mid-March. Some immigration experts believe the government is acting unlawfully. America is not at war with Venezuela or TdA, they say, and the administration has provided little evidence that individuals subject to removal under the act are members of TdA.
On April 7, the Supreme Court said deportations under the act can continue for now, but with access to due process for detainees. Soon after, federal judges in New York and Texas placed on the deportation effort.
White House adviser Stephen Miller has defended the current use of the act 鈥� and the seemingly absolute powers of the executive branch to carry it out.
鈥淚f you illegally invaded our country the only 鈥榩rocess鈥� you are entitled to is deportation,鈥� he聽April 1.聽
Courts will likely 鈥渆ngage pretty deeply with this expansive use of foreign policy powers and wartime powers,鈥� given that the law is being invoked at a time of peace, says Denise Gilman, co-director of the Immigration Clinic at the University of Texas School of Law.
Using a foreign policy provision to threaten deportation
The March 8 arrest of prominent Columbia University protester Mahmoud Khalil has shed light on another rarely used provision of immigration law.
The Trump administration is attempting to deport Mr. Khalil, a green-card holder of Palestinian descent, under a 1990 update to the Immigration and Nationality Act. The provision can make legal residents eligible for deportation if the Secretary of State deems that their presence or activities in the U.S. would have 鈥減otentially serious adverse foreign policy consequences.鈥�
鈥淭he reason they鈥檙e using this authority is to gain more power to deport people purely for speech without proving they鈥檙e a threat,鈥� says David Bier, director of immigration studies at the Cato Institute.
鈥淓verybody should be concerned when the government says they don鈥檛 need to prove anything,鈥� he says.
An immigration judge on Friday ruled that Mr. Khalil can be deported, which his lawyers say they鈥檒l continue to fight.
The immigration judge in Louisiana,聽where Mr. Khalil is detained, had聽聽to provide its evidence in support of deporting Mr. Khalil.
In a partially redacted obtained by the AP, Secretary of State Marco Rubio said his determination was based on Mr. Khalil鈥檚 role in 鈥渁ntisemitic protests and disruptive activities, which fosters a hostile environment for Jewish students.鈥澛�
Foreigners here temporarily are also under scrutiny. In late March, Secretary Rubio estimated 300 or more visas had been canceled for students and visitors so far;聽聽from Insight Higher Ed suggests the number is more than double. At least two who came to U.S. campuses are fighting their attempted deportations.
Return to federal registration
On Inauguration Day, the president signaled tougher enforcement of a rarely used immigrant registration system was coming.
One of his directed the secretary of Homeland Security to inform 鈥渁ll previously unregistered aliens鈥� about their obligation to register with the government. The administration announced the new rule would take effect April 11.
Immigrants have been subject to this registration requirement under the since 1940, allowing for criminal prosecution if they fail. Another from 1952 requires proof of registration to be carried 鈥渁t all times.鈥�
However, the registration requirement has been infrequently enforced.聽After 9/11, the George W. Bush administration applied it to men from countries it deemed possible national-security threats. That program was eventually made redundant by other systems that gathered data on arrivals and departures.
Now the Trump administration says it will enforce the registration laws with civil and criminal consequences for noncompliance. Immigrants rights groups , but a federal judge on Thursday allowed the administration to proceed.聽
Immigrant advocates say the new demand has put themselves 鈥� and their clients 鈥� in a bind.
鈥淚t鈥檚 been tough for all of us to figure out exactly the right approach,鈥� says Robert Painter, managing attorney at the Texas Immigration Law Council.
Some immigrants are already known to the government, such as if they鈥檝e been issued work permits or other immigration documents. But those in the country without authorization, or here with a provisional status, could be 鈥渁sked to incriminate鈥� themselves on the new government form, he says.
鈥淎s attorneys, we can鈥檛 counsel people to be in noncompliance with the law,鈥� adds Mr. Painter. 鈥淏ut we also have to protect our clients.鈥�
Ira Mehlman, media director at the Federation for American Immigration Reform, says the government should know the whereabouts of unauthorized immigrants. And those in the country illegally should be concerned that the law may be聽enforced against them, he says.
鈥淭here鈥檚 nothing that says we have to provide you an opportunity to hide.鈥澛�
Editor's note: This story was updated to include the result of a court ruling on the afternoon of April 11, the date of initial publication, that Columbia University protester Mahmoud Khalil could be deported.聽