CNN reported that several sources have indicated that Trump is preparing to evoke the Alien Enemies Act of 1798 in his immigration crackdown.

Trump seeks to use 18th-century law in immigrant gang crackdown

Trump reportedly intends to use the law as part of a crackdown against Tren de Aragua, or TDA. This Venezuela-based criminal organization is now operating in the United States, among other countries. If the president has his way, he could use the Alien Enemies Act to more easily detain and deport unauthorized immigrants, including members of the gang.

In one of the many executive orders Trump signed on Inauguration Day, Trump announced that he would “begin the process of designating cartels, including the dangerous Tren de Aragua, as foreign terrorist organizations and use the Alien Enemies Act to remove them.” According to CNN, Trump could evoke the act as early as Friday, though the Department of Homeland Security has not yet announced such a move.

Trump’s authority to use controversial law is questionable

Even if Trump intends to use the Alien Enemies Act against TDA or other unauthorized immigrants, he would likely face significant legal challenges. As the Brennan Center for Justice notes, the Alien Enemies Act is a wartime measure that has only been used in three instances: during the War of 1812, World War I and World War II. Each time, the act was used to detain, deport or restrict immigrants from countries with which the United States had hostilities, such as Germany, Hungary, Italy or Japan. The most notorious use of the act was during World War II when it was part of the justification for Japanese internment, an act for which the U.S. government later apologized.

Legally, it is generally up to Congress to evoke the Alien Enemies Act, which is intended for wartime situations. The Brennan Center states, “Invoking it in peacetime to bypass conventional immigration law would be a staggering abuse.” The organization notes, however, that the president can evoke the act in an emergency if there is an “invasion” or a “predatory incursion” by a foreign force. The ambiguity of those terms leaves the circumstances under which the president can evoke the act up to interpretation. The act has been the subject of several court cases, while some lawmakers have suggested it be repealed altogether. An attempt by Trump to use it now would likely face legal challenges.

While Trump would have legal difficulties evoking the Alien Enemies Act, he has already taken a sweepingly broad view of presidential authority on several issues, and his administration is seemingly prepared to use other obscure laws to clamp down on immigration. Given that track record, it’s likely that Trump will claim authority under the Alien Enemies Act as part of his broader push toward heavy-handed use of executive power, regardless of whether the courts ultimately let him do so.