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

By John Fritze, CNN

(CNN) — President-elect Donald Trump is preparing to dust off a series of centuries-old laws and legal theories to drive his first-year agenda — particularly on the border and birthright citizenship — hoping history will be on his side when the inevitable legal challenges make their way to the Supreme Court.

The incoming president has said he intends to use an obscure 1798 law with a sordid backstory to speed deportations and has hinted at the possibility of invoking a separate law with roots in the Whiskey Rebellion of 1794 to deploy the military on American soil.

Immigration isn’t the only policy in play: Some of his allies, including Vice President-elect JD Vance, have advocated for enforcing an 1873 chastity law that could bar sending abortion drugs through the mail.

Trump has framed the laws as harking back to a more muscular time in American politics, suggesting he may use the powers signed into law by Presidents John Adams, Thomas Jefferson and others to confront the “enemy from within” and carry out mass deportations of undocumented immigrants.

“Think of that: We had to go back to 1798,” Trump told a conservative gathering in Georgia days before the November election. “That’s when we had laws that were effective.”

But at least some of the authorities Trump is preparing to claim have fraught histories — and their invocation will queue up confrontations with an unpopular 6-3 conservative Supreme Court that is being closely watched for its appetite to act as a guardrail on the new administration.

“Trump’s style is ‘Don’t get in my way,’” said William Banks, a Syracuse University law professor and expert on the Insurrection Act.

The 1807 law, Banks said gives the president “enough discretion that he could drive a truck through” its requirements to deploy the military at home, such as for immigration enforcement.

“The act allows him to do a lot on his own,” Banks added, “with very few procedural hurdles.”

‘In those days, we didn’t play’

During his campaign, Trump specifically vowed to invoke the Alien Enemies Act of 1798 to “target and dismantle every migrant criminal network operating on American soil.” The law allows the federal government to expedite deportations of citizens of a “hostile nation” in times of war or when an enemy attempts an “invasion or predatory incursion” into the United States.

“This is how far we had to go back, because in those days, we didn’t play games,” Trump said at a rally in November.

The notion that migrants entering the US represents an “invasion” has gained currency among some legal conservatives, particularly in the context of birthright citizenship — another historic principle Trump has promised to topple. But experts say the incoming president will face an uphill fight 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 US citizens of Japanese descent (which the Supreme Court upheld in a controversial 1944 decision).

The act, “by its history, is very clearly a wartime authority and so to have a president use this authority outside of wartime would be a clear abuse,” said Katherine Yon Ebright, counsel in the Brennan Center’s Liberty and National Security Program who has written extensively about the law.

But Ebright and others have warned it’s not clear if courts would step in stop Trump from using it during peacetime.

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

War, the court reasoned at that time, isn’t necessarily over “when the shooting stops.”

The 1873 chastity law

Some conservatives remain hopeful that Trump’s incoming administration will enforce an 1873 law that bans the sending of “lewd” and “indecent” materials through the mail. Decried by critics as a “zombie law,” the Comstock Act is viewed by anti-abortion advocates as a tool that could be used to prohibit the mailing of abortion drugs.

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

Trump told CBS News in August that he would — “generally speaking” — not use the act to ban the mailing of abortion drugs. And yet there will likely be pressure on his Justice Department to undermine the Biden administration’s position on the issue. Biden’s DOJ issued an internal memo in 2022 finding that the Comstock Act doesn’t bar mailing abortion drugs when the recipient lacks the intent to “use them unlawfully.”

Trump told NBC in early December that he “probably” would not attempt to restrict access to abortion medication but said that “things do change.”

Vance, then a Republican senator from Ohio, was one of several Republicans who signed a letter that described that memo as “disappointing” and called for it to be “immediately rescinded,” according to The Washington Post.

The Supreme Court dodged the issue in a related opinion in June that dealt with the Food and Drug Administration’s decades-old approval of the abortion pill mifepristone. But it was clear during the oral arguments in that case in March that at least two conservatives — Justices Clarence Thomas and Samuel Alito — were interested in the issue.

“This is a prominent provision,” Alito said. “It’s not some obscure subsection of a complicated obscure law.”

Military for deportations?

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 with the deportation of millions of undocumented immigrants.

Because federal armed forces are generally barred from civilian law enforcement, Trump would likely have to rely on the Insurrection Act to carry out such a policy.
The current version of the act was last invoked by President George H.W. Bush during the 1992 Los Angeles riots that followed the acquittal of four White police officers in the beating of Rodney King.

The general prohibition on using 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 told Time in another interview after the election. “We’ll go as far as I’m allowed to go, according to the laws of our country.”

The best-known use of the Insurrection Act was in 1957, when President Dwight Eisenhower federalized the Arkansas National Guard and sent the 101st Airborne Division to Little Rock to integrate its schools. That order followed the Supreme Court’s historic decision three years earlier in Brown v. Board of Education that declared segregated schools unconstitutional.

The Supreme Court has generally deferred to the president’s judgment to invoke the law.

“There isn’t much of a historical set of precedents to interpret laws like the Insurrection Act,” Banks said. “And the reason, ironically, is that the courts have given such a wide berth to the president to make the call about when it’s and when it’s not necessary to use the military.”

Relitigating birthright citizenship

Trump is also keen to reopen an old fight over birthright citizenship, which has been settled law since the Supreme Court ruled in 1898 that people born on US soil are citizens, even if their parents are not.

The president-elect has long railed against birthright citizenship, which is protected under the 14th Amendment.

Still, his allies are considering directing the State Department to deny passports to children with undocumented parents and tighten requirements for tourist visas to crack down on “birth tourism,” sources familiar with the planning told CNN in December. Denying passports to people born in the United States would trigger immediate lawsuits.

Trump last year described long-held protections for people born in the country as being “based on a historical myth, and a willful misinterpretation of the law.”

But legal experts on both ends of the political spectrum believe history would work against Trump.

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

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