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Tapping Ancient Wartime and Security Laws, Trump Administration Dramatically Expands Immigration Powers [1]

['Muzaffar Chishti', 'Colleen Putzel-Kavanaugh Muzaffar Chishti', 'Colleen Putzel-Kavanaugh']

Date: 2025-03-18 16:07:58-04:00

The Trump administration is digging deep into history to dust off policies and legal provisions that have not been invoked in decades to meet its goal of mass deportations and deterrence of unauthorized immigration. By using ancient laws with roots in wartime and other security authorities, sometimes stretching back centuries, the administration has tapped into vast powers never previously used for routine immigration enforcement, affecting both unauthorized immigrants and those with legal status—including green-card holders.

The administration has invoked the 1798 Alien Enemies Act and 1940 Alien Registration Act. The Alien Enemies Act previously had been invoked only three times (during the War of 1812, World War I, and World War II), never for immigration purposes and is chiefly remembered for its use to intern tens of thousands of nationals of Axis countries during World War II. The Alien Registration Act was first used as a recruitment mechanism for the war effort as the United States prepared to enter World War II, later for the Cold War-era Red Scare campaign against communists, and most recently in the aftermath of the September 11, 2001 terrorist attacks. Those and other uses came to be regarded as black marks on U.S. history. By deploying these laws now and signaling a possible triggering of the 1792 Insurrection Act allowing the government to sidestep the general legal prohibition on using the military for civilian law enforcement, the Trump administration has set new precedent in the use of conflict-related powers and further expanded the executive branch’s latitude to monitor, detain, and deport noncitizens.

The moves, which have drawn intense legal pushback, come as the administration has yet to meet its ambitious goals to ramp up deportations. Though removals from the U.S. interior are slightly higher than under the Biden administration, President Donald Trump has been frustrated with the pace, which is far below leaders’ expectations. In response, leadership at U.S. Immigration and Customs Enforcement (ICE) has been shuffled.

The administration’s use of these conflict-related laws sends a strong signal that it considers immigration policy to be part and parcel of national security policy. The administration has claimed that irregular crossings at the U.S.-Mexico border constitute an “invasion” meriting warlike footing, although the fewer than 12,000 U.S.-Mexico border encounters of unauthorized migrants in February represent the fewest in nearly a decade. At the same time, the deportation of Venezuelans to El Salvador, many under the Alien Enemies Act, has encountered early opposition from the courts, triggering a fast-moving and potentially hugely impactful dispute over the limits of the executive branch's authority.

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This article looks at past uses of old statutes and outlines their current or potential uses and consequences, as well as potential roadblocks to their implementation.

A U.S. Legacy of Noncitizen Registration

Effective April 11, pursuant to a February 25 executive order, certain noncitizens both legally present and in the United States without authorization will need to register with the Department of Homeland Security (DHS) under a longstanding security authority. Drawing on Section 262 of the Immigration and Nationality Act (INA), the administration is requiring registration of all noncitizens ages 14 and older who were not fingerprinted or registered during their application process for a U.S. visa and who remain in the country for more than 30 days, as well as parents or legal guardians of noncitizens under 14, and any noncitizen who turns 14 whether previously registered or not (see Table 1). DHS estimates that between 2.2 million and 3.2 million noncitizens will have to register.

Table 1. U.S. Noncitizens Affected or Not by New Registration Requirement, 2025 Source: U.S. Citizenship and Immigration Services (USCIS), “Alien Registration Requirement,” updated March 12, 2025, available online.

To meet the registration requirement, noncitizens will need to create an online account with U.S. Citizenship and Immigration Services (USCIS), fill out a form, and submit biometrics including fingerprints, a photograph, and signature. Upon completion, they must print their “proof of alien registration” document. Failure to register could result in criminal and civil penalties, including misdemeanor prosecution and fines up to $5,000, six months in jail, and grounds for deportation. All noncitizens over age 18 who have registered must carry proof of registration and notify the government of any change in address; failure to comply carries consequences including possible deportation.

There are questions about the government’s capacity to prosecute large numbers of cases for registration-related violations, especially amidst all-of-government downsizing. Unauthorized immigrants are already removable, so while this requirement adds an additional ground for their removal it does not functionally change their removability.

Although it has some historical precedent, as discussed below, the Trump administration’s mandate for registration has one distinct contrast with prior uses. Unlike in the past, this is not a time of active warfare, nor has there been an attack on U.S. soil akin to 9/11. The new requirement is designed to collect information the government does not already have and will contribute to the chilling effect on unauthorized immigrant communities. Given already stepped-up enforcement and a general anxiety among unauthorized immigrants nationwide, it remains to be seen how many people will register.

Box 1. The Detention of Mahmoud Khalil In recent days, the Trump administration has doubled down on its striking use of obscure legal powers in its bid to revoke the lawful permanent residence of a university protestor. The high-profile case of Mahmoud Khalil, who played a prominent role in Palestinian demonstrations at Columbia University, hinges on the rarely invoked Section 237(a)(4)(C)(i) of the Immigration and Nationality Act (INA). Though this particular amendment dates to 1990, its roots are in the original enactment of the INA in 1952. While not a wartime law, many of its provisions are emblematic of the security and foreign-policy fears that defined that era. As such, the provision states that a noncitizen is deportable if their “presence or activities in the United States the Secretary of State has reasonable ground to believe would have potential adverse foreign policy consequences in the United States.” Though the provision states a noncitizen cannot be removed for their beliefs, statements, or associations, “if such beliefs, statements, or associations would be lawful within the United States,” the Secretary of State can nonetheless seek removal if they determine the continued presence of the noncitizen “would compromise a compelling United States foreign policy interest.” That determination requires specific congressional committees be notified of the finding, which appears not to have happened in this case. Khalil’s deportation has not yet occurred, and his case must go through the immigration court and appeals processes. This is a rare use of the authority and appears to represent the first such use since a 1995 case involving Mario Ruiz Massieu, a former deputy attorney general of Mexico arrested in the United States with thousands of dollars in undeclared cash. Then-Secretary of State Warren Christopher invoked the authority in an attempt to deport Ruiz Massieu, who in response filed a lawsuit challenging the removal on the basis that the provision was unconstitutional. A federal judge in New Jersey, Maryanne Trump Barry—President Donald Trump’s sister—found the provision unconstitutional; an appeals court overruled her decision not on the constitutionality question but because the case had to go through the administrative immigration process before a federal court could weigh in. In 1999, the Board of Immigration Appeals ruled the government could invoke that provision to deport Ruiz Massieu, but the government changed its strategy and instead indicted him for a crime. Ruiz Massieu passed away, apparently by suicide, before the case was completed, thus the constitutional issue was never fully resolved. Trump has indicated his administration intends to use this provision in additional cases.

The Legacy of Noncitizen Registration

There are two distinct prior immigrant registration chapters in U.S. history. The first, and origin of the current law, is the Alien Registration Act of 1940, also known as the Smith Act for lead author Rep. Howard Smith (D-VA). This act required noncitizens (except children under 14, diplomats, and employees of foreign countries) to register at their local post office, provide fingerprints and fill out a questionnaire with biographic information, residence, and employment information.

Introduced shortly before the United States entered World War II, this was in part a measure to recruit more personnel to the U.S. armed forces. Attorney General Robert Jackson described noncitizens as “precious human assets” and the government set out a large-scale media campaign to encourage registration in languages including German, Italian, and Polish. The registration campaign used a carrot-and-stick approach: It offered the potential of expedited naturalization for those who served honorably in the armed forces and met other criteria (via the Second War Powers Act of 1942) and criminal charges or fines for those who failed to register or carry proof of registration. Between 1940 and 1944, more than 5.6 million noncitizens registered; nearly 110,000 noncitizen members of the U.S. armed forces were naturalized between 1942 and 1945.

Later, the Smith Act was used to target individuals with alleged communist ties. The law made it a crime to attempt to overthrow the government by force, circulate materials, or organize groups advocating for such activities. This provision and subsequent laws were used to target those with potential communist ties, especially immigrants from Germany, Italy, and Japan, well into the 1950s. For example, the Alien Registration Act was used to target any members of the Communist Party of the United States (including U.S. citizens), ultimately resulting in the indictment of 144 people, of whom 105 were convicted (many convictions were later overturned).

The second chapter of registration was the creation of the National Security Entry-Exit Registration System (NSEERS) in 2002, following the terrorist attacks of 9/11. The NSEERS program applied to males ages 16 and older from 25 designated countries, most of which are Muslim-majority. Males from the targeted country, whether already resident in the United States or seeking entry, were required to submit biographic information, fingerprints, and photographs; to check in with immigration authorities; use specific ports of entry for travel into and out of the country; and notify the Justice Department of a change of address. Failure to comply resulted in criminal or immigration penalties, including a misdemeanor criminal offense, being barred from future visas or adjustment of status, and becoming subject to removal.

The NSEERS program faced immense criticism. Many noncitizens did not know or understand the consequences of noncompliance. Though invoked as a national security measure, it targeted people solely based on their country of origin rather than on evidence of national security threat or other criminal activity. It also proved to be ineffective; of the more than 83,500 registrants, just 11 were found to have terrorist ties. Nearly 14,000 were placed in removal proceedings due to immigration violations.

Several lawsuits were brought to challenge the NSEERS program, with little success. In Rajah v. Mukasey, the Second U.S. Circuit Court of Appeals found that the Justice Department had authority to implement the program; that decision was not appealed. All the same, the registration component of NSEERS was lifted in 2003, though other provisions of the program remained on the books until DHS ended it in 2011.

Read all MPI analysis related to the Trump administration Read More

A Wartime Authority: Alien Enemies Act

While registration has a clear history in immigration policymaking, the Alien Enemies Act has not been used before for day-to-day immigration enforcement. Trump invoked the law on March 14, claiming that the Venezuelan Tren de Aragua gang was “undertaking hostile actions and conducting irregular warfare against the territory of the United States both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.” Trump’s order claims gang members who are Venezuelan nationals, ages 14 and older, and in the United States without a green card or U.S. citizenship can be deported “as alien enemies.”

Officials designated Tren de Aragua and other cartel groups as foreign terrorist organizations on the first day of the second Trump term. It is unclear how authorities are determining membership in the gang, raising concerns that the law could be used somewhat indiscriminately to quickly deport a large number of Venezuelans. Within hours of the invocation, a federal judge ordered a pause on its use for removals. However, 137 Venezuelans were nonetheless removed under the 1798 law’s authority to a maximum security prison in El Salvador (on flights that had already left the ground at the time of the judge’s order), teeing up a potentially historic battle between the administration and the courts.

The 1798 law allows for the detention and deportation of “natives, citizens, denizens, or subjects” of a “hostile” nation. In the country’s early days and amid worries about French radicalism, it was passed alongside other laws including the Alien and Sedition Acts, which together were meant to provide the president with broad authority to seek out enemy spies in the United States. While Congress allowed the other acts to expire, the Alien Enemies Act remains on the books. In fact, while originally limited to men, Congress amended the act to include women in 1918, but it has otherwise not been modified.

The Alien Enemies Act had previously been used only three times, exclusively during wars. During the War of 1812, British nationals were required to report to the U.S. government, including their age, length of time in the country, address, and if they had ever applied for naturalization.

But it is the law’s use for detention practices during the World Wars for which it is best known. During World War I, the Alien Enemies Act was invoked against Germans, Austro-Hungarians, and Bulgarians; 6,000 individuals—mostly Germans—were placed in internment camps. In World War II, the act was invoked against nationals from Japan, Germany, and Italy. About 31,000 mostly German and Italian nationals—including some Jewish refugees from Nazi Germany—were interned. While more than 100,000 U.S. nationals of Japanese descent were also placed in internment camps during the war, the main legal authority for this detention was President Franklin D. Roosevelt’s Executive Order 9066. Although some Japanese internment may have occurred under the Alien Enemies Act, the fact that most interned people of Japanese descent were U.S. citizens meant that the 1798 law did not apply to them. In an infamous 1942 decision, Korematsu v. United States, the Supreme Court upheld the internment of a U.S. citizen of Japanese heritage, finding that his detention was a “military necessity” not based on race. All the same, internment based on national origin or background has long been considered a dark period of U.S. history, and the government has since formally apologized.

Use of the Alien Enemies Act today to target a gang during peacetime is unprecedented and immediately faced legal challenge. Under the statute, there are three circumstances under which a president can invoke the law: during a time of declared war (which the United States has not formally done since World War II; its military incursions since then have occurred under auspices of congressional resolutions or authorizations for the use of military force), when a foreign government threatens an invasion, or when a foreign government threatens a “predatory incursion.” While a president must wait for Congress to declare a war, no authorization is required to respond to an invasion or predatory incursion.

Despite the Trump administration declaring an “invasion” on day one of its term, it did not claim that a foreign government was to blame. Past uses of the law have taken the phrases “invasion” and “predatory incursion” literally, as opposed to a reference to high rates of irregular migration. For example, in the 1996 case Padavan v. United States, the Second U.S. Circuit Court of Appeals dismissed the claim that an influx of both legal and irregular immigrants into the state of New York represented an invasion. Just months later, a similar ruling was made in the Third Circuit in New Jersey v. United States, arguing that the term “invasion” cannot be used to mean anything other than a military invasion. The following year, a case in the Ninth Circuit, State of California v. United States, came to a similar conclusion. And as recently as 2024, in United States v. Texas, the Fifth Circuit was “not persuaded” by Texas’s argument that high levels of irregular immigration could be classified as an invasion.

However, in its recent invocation of the Alien Enemies Act, the administration vaguely suggested the involvement of a foreign government: the regime of Venezuelan President Nicolás Maduro. While specifically targeting Tren de Aragua, the administration stated that the group is “aligned with and has infiltrated” the Venezuelan government. Moreover, the administration did not cite as rationale irregular migration from Venezuela, but rather the flow of narcotics and dangers to U.S. national security posed by Tren de Aragua. While courts have set a precedent that irregular migration on its own does not classify as an invasion, this invocation sets up a new argument.

There are other considerations about the use of the Alien Enemies Act now. For one, the law itself provides for full judicial review of a person’s detention under the law. The 1817 case Lockington v. Smith clarified that judicial review did not have to happen before an individual was detained under the law but is available afterwards and could be used to determine if the person met the standard of being a native, citizen, denizen, or subject of the “enemy” nation. And since 1798, there have been important constitutional safeguards and protocols put in place—including the 14th Amendment’s due process clause and the Convention Against Torture—that may hinder full implementation.

An Act that May Be Tapped: The Insurrection Act

In a January 20 executive order declaring a national emergency at the U.S.-Mexico border, the Departments of Justice and Homeland Security were ordered to determine if the use of the Insurrection Act is necessary to obtain “full operational control” of the border; their findings are due by April 20.

Enacted in 1792, the Insurrection Act, which has never before been used for immigration enforcement, allows the president to deploy the military domestically to quell rebellion, and is the primary exception to the Posse Comitatus Act’s general ban on the military participating in civilian law enforcement. Under the law, the military can be deployed to enforce a federal court order or to suppress an uprising, but must occur under one of three scenarios: a state requests military aid and consents to deployment; a state does not request the aid but the president determines troops are needed to enforce laws or repress rebellion; or local authorities are unwilling or unable or the state opposes or obstructs the execution of laws in the case of an insurrection, domestic violence, conspiracy, or some deprivation of constitutional rights, such as when the military was deployed to desegregate Southern schools after the Brown v. Board of Education decision.

Over its history, the act has been invoked 30 times, though not every invocation resulted in the deployment of troops (see Figure 1). Most recently, President George H.W. Bush invoked the Insurrection Act in 1992 during civil unrest in Los Angeles following the acquittal of four police officers who beat Rodney King.

Figure 1. Timeline of Select Invocations of the Insurrection Act, 1792-2025 Note: Timeline does not show every instance of the Insurrection Act’s invocation, although it includes both the first and most recent invocations as of this writing.

Source: Joseph Nunn and Elizabeth Goitein, Guide to the Invocations of the Insurrection Act (New York: Brennan Center for Justice, 2022), available online.

Use of the Insurrection Act, like the Alien Enemies Act, also has checks and balances. For example, many have argued that it does not allow for the suspension of constitutional rights and that if there is a conflict between the Insurrection Act and a provision of the Constitution or federal law, the latter would always prevail. The 1932 Supreme Court decision in Sterling v. Constantin clarified that courts could review the lawfulness of the military’s actions while deployed under the act. Moreover, a 1975 Justice Department memo states that the “general rule seems to be” that the Insurrection Act must be used under “reasonable” circumstances, clarifies that the law does not give the military the power to arrest, and says that anyone apprehended by the military must be turned over to civil authorities.

Redefining the Tools for Immigration Enforcement

This is not the first time the Trump administration has dusted off the history books to implement immigration enforcement or border policy. In March 2020, the first Trump administration invoked Title 42, a little-known 1944 public health law, during the COVID-19 pandemic, allowing authorities to immediately expel irregularly arriving migrants without providing an opportunity to request asylum. It was used nearly 3 million times at the U.S.-Mexico border. However, the current chapter is starkly different in that the administration now seeks to target, detain, and deport unauthorized immigrants and certain noncitizens within the U.S. interior.

The Trump administration had reportedly long considered using Title 42, but the authority was triggered against the backdrop of an undeniable global public health crisis. The current invocations lack a similar predicate. The Alien Enemies Act, Alien Registration Act, and the Insurrection Act have previously been activated only in times of war or domestic conflict. While the Trump administration insists an “invasion” is underway at the Southwest border and has deployed 9,000 troops there to date, it also has noted that irregular arrivals are now at lows unseen in many years.

In its quest to deter new unauthorized migration and deport millions of people living in the country without authorization, the administration has turned to archaic tools and wartime powers. If the courts permit the administration to proceed, these authorities would usher in a new era in which the executive’s authority in immigration matters expands to match its already wide-ranging powers in the national security realm. There would likely be spillover effects for broader swaths of U.S. society that are impossible to predict.

Sources

Alvarez, Priscilla and Alayna Treene. 2025. Trump Prepares to Use Controversial 1798 ‘Alien Enemies’ Law to Speed Deportations. CNN, February 26, 2025. Available online.

American Immigration Council. 2025. The Trump Administration’s Registration Requirement for Immigrants. February 26, 2020. Available online.

Banks, Williams. 2025. What Just Happened: The Framing of a Migration “Invasion” and the Use of Military Authorities. Just Security, January 29, 2025. Available online.

Burnes, Elizabeth and Marisa Louie. 2013. The A-Files: Finding Your Immigrant Ancestors. Prologue Magazine 45 (1). Available online.

Chishti, Muzaffar and Claire Bergeron. 2011. DHS Announces End to Controversial Post-9/11 Immigrant Registration and Tracking Program. Migration Information Source, May 17, 2011. Available online.

---. 2011. Post-9/11 Policies Dramatically Alter the U.S. Immigration Landscape. Migration Information Source, September 8, 2011. Available online.

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---. 2024. The Alien Enemies Act, Explained. Brennan Center for Justice, October 9, 2024. Available online.

Faridi, Muhammad U., Marcy L. Kahn, Alan Rothstein, and Daniel Lewis. 2025. A Call for Congress to Clarify the Insurrection and Posse Comitatus Acts. New York: New York City Bar. Available online.

Goitein, Elizabeth. 2024. Deployment of the U.S. Military for Immigration Enforcement: A Primer. Just Security, December 3, 2024. Available online.

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Kim, Minho, Charlie Savage, and Edward Wong. 2025. The U.S. Is Trying to Deport Mahmoud Khalil, a Legal Resident. Here’s What to Know. The New York Times, March 12, 2025. Available online.

Nunn, Joseph. 2022. The Insurrection Act Explained. Brennan Center for Justice, April 21, 2022. Available online.

Nunn, Joseph and Elizabeth Goitein. 2022. Guide to Invocations of the Insurrection Act. New York: Brennan Center for Justice. Available online.

Rosen, Jacob and Callie Teitelbaum. 2025. Judge Demands to Know Why Trump Administration Ignored Order about Redirection Deportation Flights. CBS News, March 17, 2025. Available online.

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---. 2025. Chapter 3 – Immigrant Membership in Totalitarian Party. Updated March 6, 2025. Available online.

---. 2025. Military Naturalization During WWII. Updated January 28, 2025. Available online.

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