Unbridled: Immigration and the Prerogative Presidency

Open PDF in Browser: Daniel Tichenor,* Unbridled: Immigration and the Prerogative Presidency

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From the nation’s founding to the end of the twentieth century, American immigration law and policy was the product of struggle and collaboration between all three branches of the federal government. In recent decades, however, U.S. presidents have increasingly exercised broad, unilateral control over immigration matters, defying constitutional checks and balances and upending stable governance each time the White House changes partisan hands.

This Article illuminates how the wellsprings of contemporary presidential dominance over immigration can be traced to four key historical and contemporary developments. First, the elastic language of Article II of the Constitution has allowed occupants of the Oval Office over time to claim far reaching, unilateral power as part and parcel of their institutional responsibilities. Second, the plenary power doctrine, beginning in the 1880s, gave the political branches sovereign control over territorial boundaries and reinforced judicial deference on immigration matters given their connection to foreign affairs. Third, the rise of the immigration enforcement state combined with congressional polarization and gridlock fueled new expectations and pressures for twenty first century presidents of both parties to act unilaterally in service of their constituencies and rival visions of the national interest. Finally, the emergency or prerogative powers granted to presidents to meet national security crises bestow sweeping authority to regulate, detain, and remove noncitizens.

This Article also analyzes how the Trump Administration in its second term imperiled constitutional democracy by reaching beyond the broad powers over immigration exercised by most presidents in the early twenty first century. It did so by claiming sweeping executive prerogative powers usually reserved for wartime emergencies to energize its mass deportation initiatives and other efforts to exclude, detain, and remove noncitizens. The Alien Enemies Act of 1798 (AEA) and the Immigration and Nationality Act of 1952 (INA) were central to this agenda. This Article underscores how President Trump’s executive actions invoking the AEA do not respond to a true national security crisis in comparison to the three formally declared wars—the War of 1812, the First World War, and the Second World War—when the law has previously been applied. Similarly, Trump Administration efforts to incarcerate and remove noncitizens for merely exercising free speech in pro Palestinian protest campaigns also test the security driven warrants for executive authority under the INA. This Article argues that neither of these dubious assertions of emergency power should survive constitutional scrutiny, and various doctrines or rationales for deference should not prevent the judiciary from imposing at least some restraint on clear statutory and constitutional violations.

Introduction

Contemporary American presidents have assumed an outsized role in shaping U.S. immigration policy. Despite the rise of the “modern presidency” more than a century ago,^[1] executive dominance in this field is a very recent development. Until the past two decades, occupants of the Oval Office routinely shared power with, and were often overshadowed by, Congress, the courts, and state and local officials in efforts to govern immigrant admissions and rights.^[2] Traditionally, the White House influenced immigration law and policy through powers derived from Article II of the Constitution^[3] and through the plenary power doctrine that granted broad judicial deference to the political branches.^[4] Two additional, newer forces have profoundly enhanced the reach and authority exercised by presidents on immigration matters. The first is the steady expansion of executive resources for immigration enforcement both at the border and the U.S. interior, giving presidents formidable administrative capacities to mold policy outcomes.^[5] The second is decades‑long polarization and gridlock in Congress on comprehensive immigration reform—emboldening presidents to take broad unilateral action to govern immigration while lawmakers remain stuck in neutral.^[6]

Upon reentering office in 2025, the Trump Administration sought to further expand executive control over immigration and noncitizens by casting immigration as an “invasion” or “national security crisis”—one that justifies the presidential use of unrestrained prerogative power to meet the challenge.^[7] It did so by drawing upon two laws that frame noncitizens as security threats: the Alien Enemies Act of 1798 (AEA)^[8] and the Immigration and Nationality Act of 1952 (INA).^[9] The AEA was enacted in the late eighteenth century to give the federal government sweeping authority to regulate foreign nationals from countries that are at war with the United States.^[10] President Trump invoked the AEA to supercharge his mass deportation policies, arguing that many Central and South American countries are run by drug gangs who are sending unauthorized migrants to the United States as hostile invaders.^[11] The INA was adopted at a time when the Cold War, red scares, and harsh immigration restrictions reigned supreme, and it established broad powers for executive branch officials to exclude, regulate, and deport noncitizens in the name of U.S. foreign policy interests.^[12] Trump officials invoked various provisions of the INA to justify the detention and deportation of students and legal permanent residents who participated in pro‑Palestinian protests, mandatory noncitizen registration requirements, and a new travel ban on foreign nationals from twelve mostly African and Middle Eastern countries.^[13]

As the Trump Administration employed the AEA and INA to advance its mass deportation campaign and to impose fresh restrictions on immigration and noncitizen rights, it consistently framed these executive actions as crucial national security and foreign policy imperatives.^[14] In times of war, previous presidents have claimed broad, unrestrained emergency power—prerogative power—in the name of keeping the nation safe and guarding its geopolitical interests.^[15] President Trump sought similar sweeping power in response to purported threats from international migrants and noncitizens.^[16] Justice Robert Jackson famously warned in his Korematsu dissent that judicial validation of unchecked executive power in times of emergency is “like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”^[17] This Article underscores how President Trump’s executive actions invoking the AEA do not meet the law’s requirements of a wartime national security crisis. In similar fashion, Trump Administration efforts to incarcerate and remove noncitizens for exercising free speech and participating in protests also test the security‑driven warrants for executive authority under the INA. This Article argues that neither of these dubious assertions of emergency power should survive constitutional scrutiny, and various doctrines or rationales for deference should not prevent the judiciary from imposing at least some restraint on clear statutory and constitutional violations.

How courts resolve numerous challenges to the Trump Administration’s claim of unrestrained executive power under the AEA and INA will have significant implications for both noncitizen rights and the future of checks and balances in U.S. immigration policymaking. Part I of this Article demonstrates the growth of executive control over immigration policy, beginning with Article II of the Constitution and the plenary power doctrine and expanding decisively with the rise of the immigrant enforcement state and presidential unilateralism in response to congressional polarization. Next, Part II surveys the origins and development of prerogative power in the United States, exploring its use by presidents during major wars and the Trump Administration’s claims in response to international migration. Part III then explores the establishment and legal precedents associated with the AEA, including three wartime invocations of the law and more recent efforts to use it as an emergency measure to streamline mass deportation. Lastly, Part IV focuses on the broad warrants for executive action created by the INA and also assesses its application to the free speech of permanent residents, mandatory registration requirements for the foreign‑born, and a new travel ban. The Article concludes by underscoring why concentrating enormous power over immigration in the presidency enervates constitutional democracy and leaves noncitizen rights vulnerable to the discretion of executive branch officials; reestablishing checks and balances in this policy field will yield more just and stable policy outcomes.

Growth of Executive Control of Immigration Policy

The broad, unilateral power that American presidents currently wield over national immigration policy reflects the culmination of several defining legal and political developments that emerged over the long course of U.S. history. The first development that helped fuel expansive presidential power can be traced to its blueprints in Article II of the U.S. Constitution, which created ambiguous parameters for executive authority that future incumbents exploited to assert control over immigration. A second wellspring of wide executive discretion over international migrants was the emergence of the plenary power doctrine in the late nineteenth century, establishing enormous leeway for lawmakers and executive officials to govern the admission, exclusion, and removal of noncitizens with little to no judicial oversight. A third key development was the emergence of a far‑reaching and well‑funded system of U.S. immigration enforcement in the late twentieth and early twenty‑first centuries, providing the White House with extensive capacities to regulate borders and noncitizens through its command over executive branch agencies. Finally, deep partisan polarization and chronic legislative gridlock on major reform proposals have severely limited the ability of Congress to shape immigration policy, generating political pressures and openings for presidents to do so independently. Part I of this Article explores how these four developments have aligned to produce unprecedented presidential control over immigration governance in the twenty‑first century. Section I.A highlights the elasticity of Article II of the U.S. Constitution and the steady expansion of presidential power and responsibilities over time that flowed from this vesting clause. In Section I.B, the emergence of the plenary power doctrine and its impact on immigration authority of the executive branch is examined. Section I.C focuses on the dramatic growth in recent decades of the federal immigration enforcement system and the resources it placed at the fingertips of presidents to advance their policy agendas. Finally, Section I.D captures the tenacious stalemate that has gripped Congress on immigration policy for a quarter century and its role in fueling significant, unilateral executive power over borders, visas, and migrant rights.

Article II and the Elastic Powers of the American Presidency

The Vesting Clause of the Constitution’s Article II, which entrusts executive power in the president, was the product of considerable uncertainty and disagreement among delegates to the Constitutional Convention of 1787. As leading presidential scholars note, “the design of the executive was one of the most vexing problems of the Constitutional Convention, and solving it was the convention’s most creative act.”^[18] The founding generation openly noted the challenges of constructing Article II. In a letter to George Washington in the spring of 1787, James Madison confessed that “I have scarcely ventured as yet to form my own opinion either of the manner in which [the executive] ought to be constituted or of the authorities with which it ought to be clothed.”^[19] Virginia Governor Edmund Randolph observed during the Virginia ratifying convention of 1788 that “the greatest difficulty arises from the executive—as to the time of his election, mode of his election, and quantum of power.”^[20] Alexander Hamilton, one of the leading architects of the constitutional presidency, echoed Randolph the same year when describing the final version of Article II in his Federalist No. 67: “There is hardly any part of the system which could have been attended with greater difficulty in the arrangement of it than [the executive department], and there is, perhaps, none which has been inveighed against with less candor, or criticized with less judgment.”^[21]

The uncertainties and disagreements attendant to establishing the presidency ultimately yielded an Article II of the Constitution that was less instructive and precise than Articles I and III, which confer legislative powers to Congress and judicial powers to the Supreme Court, respectively. The potential for presidents to exercise broad authority begins with the opening words of Article II: “The Executive Power shall be vested in a President of the United States.”^[22] This language contrasts with Article I, which offered a more circumscribed description of the powers vested in Congress: “All legislative Powers herein granted shall be vested in a Congress of the United States.”^[23] As political scientist Richard Pious writes, “‘Executive power’ was a general term, sufficiently ambiguous so that no one could say precisely what it meant. It was possible that the words referred to more than the enumerated powers that followed, and might confer a set of unspecified executive powers.”^[24] Proponents of the concept of a unitary executive argue that the president alone possesses the executive power and as such must exercise absolute control of the executive branch and its administration, and they conclude, as John Yoo notes, that Article II endows the president with “inherent executive powers that are unenumerated in the Constitution.”^[25] These inherent powers include the ability to remove executive officials, to conduct international relations for the country, and to deploy military force.^[26]

As much as the imprecise language of Article II’s Vesting Clause raises the possibility that presidents were granted unspecified powers, similar uncertainties arise from the Constitution’s further instruction in Section 3 of Article II that the president “shall take care that the laws be faithfully executed.”^[27] This language, commonly known as the Take Care Clause, along with vaguely defined foreign policy powers adds to the potential elasticity of Article II and allows for presidential authority to be stretched by ambitious occupants of the Oval Office and their defenders.^[28] “It is no exaggeration, in fact, to say that ambiguity is the defining characteristic of the president’s enumerated powers—or, at least, of those powers that matter most, such as the vesting clause, the take‑care clause, and a variety of foreign policy powers,” notes presidency scholar William Howell. “The Constitution does not so much confer well‑delineated powers upon the president as it does the president’s rightful claim to an array of broad titles and responsibilities.”^[29] During the nation’s ratification debates over the Constitution, Anti‑Federalist critics assailed the “vague and inexplicit” language of Article II for creating “a president possessing the powers of a monarch.”^[30] Hamilton defended the Constitution in Federalist No. 69, highlighting the numerous differences between the British monarchy and the American presidency. One of his defenses was that in many cases the power of the presidency was less than that of the New York governor at the state level.^[31] In his next public essay, Federalist No. 70, Hamilton assumed a less defensive stance and hailed an independent, strong presidency as essential to effective national government. “Energy in the executive is a leading character in the definition of good government,” Hamilton wrote in 1788. This quality of the executive guarded the country from foreign attacks, ensured “the steady administration of the laws,” protected private property, and guaranteed “the security of liberty” against “assaults of ambition, of faction, and of anarchy.”^[32] Hamilton further explained that the president’s “energy” was provided primarily by the office’s unitary character, which endowed it with crucial virtues such as “decision, activity, secrecy and dispatch.”^[33]

Article II of the Constitution ultimately provided a broad outline of executive authority and responsibilities, establishing significant room for future presidents and events to determine the extent of the office’s unilateral powers, both explicit and inherent. Expansive interpretations and assertions of these powers have elicited strong criticism over the course of U.S. history. For example, Washington’s 1793 Neutrality Proclamation, issued unilaterally without congressional approval, was justified as being within the president’s discretion over matters of war, peace, and diplomacy.^[34] Madison argued vociferously that ceding to the president exclusive control of foreign policy while excluding legislative consideration was “in theory an absurdity—in practice a tyranny.”^[35] By the early twentieth century, Theodore Roosevelt explained in his Autobiography that during his Administration he believed that it was not only his “right” but his “duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws.”^[36] As he stated: “I did not usurp power, but I did greatly broaden the use of executive power.”^[37] His successor, William Howard Taft, denounced Roosevelt for trying “to play the part of a Universal Providence and set all things right,” insisting that “[t]here is no undefined residuum of power that he can exercise because it seems to him to be in the public interest.”^[38] Taft argued that presidents can only exercise powers explicitly granted by the Constitution or by Congressional statute.^[39] Scholars disagree about precisely when the vision of a constitutionally constrained presidency advanced by public figures like Madison and Taft became obsolete. Jeffrey Tulis, for instance, points to the emergence of a popular, “rhetorical presidency” in the first two decades of the twentieth century.^[40] Theodore Lowi asserts that a “traditional system” of decentralized party politics was supplanted in the 1930s and 1940s by an unfettered “plebiscitary presidency” in response to the Great Depression and the Second World War.^[41] Arthur Schlesinger argues that the Cold War of the 1950s and 1960s gave rise to a dangerous “imperial presidency.”^[42]

Whichever processes contributed most to expanding the authority of the executive office, by the early twenty‑first century, presidents of both major parties claimed broad, unilateral powers as consistent with the warrants of Article II. As Pious concludes, “The president claims the silences of the Constitution.”^[43]

The Plenary Power Doctrine

As much as the Constitution’s Article II over time equipped the White House with broad, elastic powers that it could use to exercise unilateral control over immigration, the “constitutional oddity” known as the plenary power doctrine that emerged in the late nineteenth century also conferred wide authority to presidents and their administrations over immigration policy.^[44] In the absence of enumerated constitutional power over immigration, the Supreme Court has recognized an “inherent” power of the United States as a sovereign nation to regulate the entry, exclusion, and presence of noncitizens.^[45] As an “extra‑constitutional” power that the Court located in national sovereignty, the judiciary has granted broad deference to the political branches over immigration law and policy, even when the exercise of that power violates the constitutional rights (like due process and equal protection) of noncitizens.^[46] This deference is accentuated when the political branches tie immigration controls to U.S. foreign policy and national security interests.^[47] Significantly, plenary power to regulate immigration belongs first and foremost to Congress, with the Court repeatedly concluding that “over no conceivable subject is the legislative power of Congress more complete.”^[48] Yet the president and executive officials also enjoy considerable deference to govern immigration and noncitizens under the plenary power doctrine when, first, Congress delegates broad power to the executive branch and second, when administration officials can claim they are acting in ways that are consistent with the intent of existing statutes.^[49] In both of his terms, President Trump has claimed almost limitless plenary power over immigration, yet federal courts have rejected the notion that immigration actions of the executive branch are “unreviewable.” Instead, courts have applied a highly deferential standard of review.^[50] Nonetheless, the plenary power doctrine gives presidents and executive officials vast leeway to shape immigration policy within the broad delegations of power given to them under laws like the INA of 1952, which will be discussed at length in Part IV.

The ability of modern presidents to claim significant plenary power over immigration is rooted in the doctrine’s original rationale in the Chae Chan Ping decision and in the doctrine’s evolution over the course of the twentieth century. Chae Chan Ping was a legally admitted immigrant who came to the United States from China, left the country to visit family in 1887, but was denied readmission months later under the Chinese Exclusion Act of 1888.^[51] Chae challenged the law on equal protection grounds, but the Court sidestepped the equal protection question in favor of another: Could the federal government assert power over immigration that was not enumerated in the Constitution?^[52] The Court’s answer was that sovereign nationhood includes the authority to decide which noncitizens to admit or exclude since “jurisdiction over its own territory . . . is an incident of every independent nation. It is part of its independence. If it could not exclude aliens it would be to that extent subject to the control of another power.”^[53] Having settled upon national sovereignty as the extra‑constitutional basis for federal governmental control of immigration, the Court provided a different reason why immigration policies and actions of the political branches were “conclusive on the judiciary.”^[54] These immigration controls were not subject to judicial review because they were closely tied to managing foreign relations with other nations and “are not questions for judicial determination.”^[55] The Court explained, “If there be any just ground of complaint on the part of China, it must be made to the political department of our government, which is alone competent to act upon the subject.”^[56] In other words, the Court concluded in Chae Chan Ping that international migration involved matters of foreign affairs and national security that were best governed by other branches of the federal government. “In realms touching upon foreign relations and national self‑preservation,” legal scholar David Martin summarizes Justice Stephen Field’s opinion, articulating how “the nation must speak with one voice, and it is not for the courts to introduce a discordant sound.”^[57]

Chae Chin Pang has never been overturned and remains important precedent for defining immigration plenary power, despite its endorsement of the noxious Chinese exclusion policies of the Gilded Age.^[58] Its durability goes to the heart of why the legal scholar Stephen Legomsky famously described immigration law as “a constitutional oddity”—one fueled by the plenary power doctrine. “In an undeviating line of cases spanning almost one hundred years,” he notes, “the Court has declared itself powerless to review even those immigration provisions that explicitly classify on such disfavored bases as race, gender, and legitimacy.”^[59] Professor Adam Cox has also questioned the tenacity and importance of the 1890s cases for ensconcing the plenary power doctrine, arguing instead that “we should begin by sleuthing that story in the 1940s and 1950s.”^[60] Whether or not one accepts Cox’s claims about when the exercise of plenary power in immigration law became foundational, a series of Supreme Court decisions during the 1950s reinforced the exceptionalism of immigration law and sustained the weight of the plenary power doctrine.

In United States ex rel. Knauff v. Shaughnessy,^[61] the Court affirmed the plenary power of executive immigration officials to exclude a German national who married a U.S. citizen, confirming that noncitizens seeking admission are not entitled to due process. Shaughnessy v. United States ex rel. Mezei^[62] also gave broad expression to the plenary power doctrine, deferring to the executive branch when it chose to indefinitely detain a permanent resident at Ellis Island when he tried to reenter the United States after visiting his dying mother in Eastern Europe. In Harisades v. Shaughnessy,^[63] the Court again cited the plenary power doctrine in granting executive officials’ broad authority to deport noncitizens who were former members of the Communist Party. While acknowledging the severity of removing three noncitizens who had lived in the country for years, the majority of the Court highlighted the potency of foreign policy and national security claims by immigration enforcement officials:

Any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.^[64]

Crucially, the Knauff, Mezei, and Harisades decisions underscored the wide plenary powers granted to the executive branch in its governance of the entry, detention, and deportation of noncitizens during the Cold War era.

The Supreme Court’s deference to executive determinations of excludability on national security grounds is a resilient feature of national immigration law during the past half‑century. In its 1972 ruling in Kleindienst v. Mandel, for example, the Court permitted the Nixon Administration to deny entry to a Belgian journalist invited to speak at U.S. universities due to his Marxist beliefs.^[65] While recognizing that denying Mandel’s visa impacted freedom of speech and thus might call for careful judicial review, the Court ultimately chose not to intervene because the executive branch only needed to provide a “facially legitimate and bona fide” basis for denying his entry.^[66] More recently, in the 2015 Kerry v. Din case, the Court deferred to presidential national security claims despite a lack of substantiating evidence.^[67] Fauzia Din, a U.S. citizen, challenged the State Department’s denial of a visa to her Afghan husband without explanation other than vague reference to its authority to refuse entry to anyone associated with terrorist activities.^[68] Din asked the Court for due process that would enable the couple to respond to these allegations.^[69] In its 5‑4 decision, the Court noted the State Department’s murky reference to terrorist activity provided Din with no opportunity to respond to her husband’s exclusion; however, it held that executive officials were not obligated to provide evidence or clear explanation for their decisions to deny visas on national security grounds.^[70] Drawing heavily on the Mandel opinion, the Court ruled that judges should not review executive visa decisions when “facially legitimate and bona fide” national security interests are invoked.^[71] These contemporary decisions underscore that the plenary power doctrine is as forceful today as it was in the Cold War era.

Although the federal courts for well over a century have deferred to the political branches on immigration law and policy, the judiciary has imposed in recent decades some modest limits on the executive’s exercise of plenary power. For example, in its 2001 Zadvydas v. Davis decision, the Court demonstrated a willingness to review possible procedural due process violations by holding that the indefinite detention of noncitizens violated constitutional norms.^[72] At the center of the case was Kestutis Zadvydas, a long‑time U.S. resident born in a German displaced persons camp who faced deportation after serving time in prison for several crimes.^[73] Because the U.S. government could not find a country to receive Zadvydas upon removal, he continued to be held in immigration detention.^[74] The Court found that under existing federal law, it could not find “any clear indication of congressional intent to grant the Attorney General the power to hold indefinitely in confinement an alien ordered removed.”^[75] Accordingly, the Court concluded that the indefinite detention of Zadvydas by executive officers constituted a violation of due process, and after six months of detention, the federal government was required under the dictates of constitutional due process to provide evidence justifying further detention.^[76] In short, although the federal courts grant the political branches broad leeway to control immigration and noncitizens, the Zadvydas decision reminds us that this discretion, especially for executive officers, is not entirely free of judicial review.

For more than a century, the plenary power doctrine has bestowed broad discretion on the political branches to shape U.S. immigration law and policy as a reflection of national sovereignty. This authority has enabled the White House and immigration agencies to regulate the entry, exclusion, and presence of noncitizens with few constraints, even when they violate the constitutional rights of foreign‑born migrants. The ability of the executive branch officials to do so, however, has long been contingent upon their administrative resources and capacities for immigration enforcement.

The Expansion of Immigration Enforcement

Building on the broad authority bestowed by Article II and plenary powers, the dramatic growth of far‑reaching immigration enforcement machinery in recent decades has encouraged executive dominance over a policy field once characterized by separate institutions sharing power. For generations, Congress and the White House clashed and compromised over how to shape and implement national immigration policy.^[77] During the past twenty‑five years, presidential control has surged as the United States has developed a well‑resourced and operationally robust immigration enforcement system.^[78] This enforcement apparatus has fueled expansive executive authority over border security, visa control, workplace enforcement, criminal immigration enforcement, and noncitizen detention and deportation.^[79] Driven by post‑9/11 concerns about terrorism, the dramatic expansion of U.S. immigration enforcement capacities and authority in recent decades has positioned the presidential office to be increasingly dominant in shaping national immigration policy.^[80] Federal spending on core immigration enforcement agencies—U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), and the Entry/Exit System (EES, the world’s largest biometric identity verification and screening admissions system)^[81]—has grown to more than the combined budgets of all other principal federal law enforcement agencies.^[82] For example, under the recently passed One Big Beautiful Bill Act of 2025, the annual budget for ICE will spike from $8 billion to $28 billion, making it the highest‑funded law enforcement agency in the federal government.^[83]

The terrorist attacks of September 11, 2001, served as a powerful catalyst for dramatically expanding the federal government’s immigration enforcement efforts with a focus on national security in general and anti‑terrorism in particular.^[84] In the aftermath of 9/11, all noncitizens—immigrants, refugees, undocumented persons, temporary workers, international students, and tourists—were viewed as potential threats.^[85] The White House, executive agencies, Congress, and federal courts reassessed their roles in making, enforcing, and adjudicating immigration law and policy in light of the War on Terror.^[86] The September 11 attacks also led President George W. Bush to create the Office of Homeland Security to unify national efforts to fight terrorist threats. This new agency formally became the Department of Homeland Security (DHS) in March of 2003 to integrate and coordinate the work of twenty‑two existing agencies to keep the nation safe.^[87] Significantly, immigration matters which were once the province of the Department of Justice, and before that the Departments of Labor and the former Labor & Commerce, were now housed in DHS.^[88] This consolidation exemplifies how in the early twenty‑first century, immigration enforcement goals and resources were framed first and foremost through the lens of national security.

The War on Terror made border control and internal enforcement top priorities of DHS, as Congress significantly boosted its enforcement budget in the years after the September 11 attacks.^[89] In 2003, DHS launched a ten‑year strategic plan, called “Endgame,” focusing on the “removal of all removable aliens.”^[90] In the decades that have followed 9/11, immigrant enforcement agencies have aggressively employed wide‑ranging statutory and procedural authorities to detain more noncitizens in the immigration detention system than the total number of those serving sentences in the Federal Bureau of Prisons for all crimes combined.^[91] They also have vigorously removed record numbers of noncitizens through new federal‑state‑local enforcement initiatives.^[92] The CBP and ICE made criminalization of immigration violations a top priority in the early twenty-first century, sometimes even referring more cases for prosecution than the total number referred by every Department of Justice law enforcement agency combined.^[93] The placement of all immigration agencies within the recently created DHS, second only to the Department of Defense in size and staffing, captures the prioritization of national security in contemporary immigration enforcement well.^[94] Sitting atop this elaborate, well‑resourced immigration enforcement system is the White House, giving contemporary presidents numerous levers with which to craft immigration policy swiftly and unilaterally.^[95] The ability of contemporary presidents to make use of these significant enforcement capacities, however, hinges upon its relative freedom from checks and balances imposed by Congress.

Congressional Gridlock and Unilateral Executive Action

Presidential governance of immigrant admissions and rights over time has been fueled by the elasticity of the Constitution’s vesting clause, the plenary power doctrine, and growing enforcement capacities. Yet Congressional stalemate on the issue has made the broad unilateral power that American presidents currently wield over national immigration policy a prominent twenty‑first century development. For most of U.S. history, the White House collaborated, battled, and compromised with government actors in other branches, and at the state and local levels, over how to regulate immigrants and immigration. During the nineteenth century, for example, presidents played a decidedly smaller role than states, port cities, and Congress in regulating immigration, as the executive branch largely confined its immigration‑related activities to modest diplomatic and recruiting efforts.^[96] In the twentieth century, numerous presidents, including Herbert Hoover and Franklin Roosevelt during the Great Depression, either collaborated with or deferred to Congress regarding immigration matters;^[97] many others, from Harry Truman to Jimmy Carter, tried and failed to bend lawmakers to their policy agenda;^[98] and a few, like Lyndon Johnson in 1965, made major concessions to congressional opponents to win major immigration reform.^[99]

However, this arrangement of separate institutions sharing power over immigration was upended during the past quarter century as the Obama, Trump, and Biden Administrations have used executive orders and other presidential powers to govern immigration independently. This enervation of traditional checks and balances in immigration policymaking fueled the growth of an elaborate immigration enforcement system within the executive branch. Moreover, chronic deadlock on the issue in Congress magnified the president’s role in immigration governance, from Obama’s Deferred Action for Childhood Arrivals (DACA) to Trump’s “family separation” policy and travel bans.

During the early American republic and most of the nineteenth century, state governments and major port cities took the lead in screening and governing new immigrants.^[100] They did so because the federal government largely retreated from these responsibilities until 1875, when the Court declared in Henderson v. Mayor of New York that state immigration laws are unconstitutional because Congress has exclusive power to regulate foreign commerce.^[101] The Court also concluded that admissions policies should be uniform across the country: “The laws which govern the right to land passengers in the United States from other countries ought to be the same in New York, Boston, New Orleans, and San Francisco.”^[102] Congress responded by enacting new federal regulations like the Immigration Act of 1882 which appropriated language from existing state laws to deny entry to “any convict, lunatic, idiot or any person unable to care of himself or herself without becoming a public charge.”^[103] The new federal law also established head taxes on each entrant to fund the immigration inspection process and to provide for the welfare of newcomers.^[104]

While Congress exercised significant new authority over immigration, fueled by the Court’s disqualification of state laws and practices, the presidency played a modest, though not inconsequential, role in this policy field.^[105] One key example lies in the executive’s role in leading diplomatic relations for the nation, including negotiating treaties with foreign nations that may contain language regarding immigrant admissions and rights. The Burlingame Treaty with China in 1868, for example, “actively set the terms of immigrants’ entry and stay in the United States.”^[106] Yet consistent with the dominance of Congress over immigration policymaking in the late nineteenth century, bipartisan majorities in the U.S. House and Senate enacted Chinese exclusion legislation in 1882 that forcefully rejected the White House’s diplomatic concerns.

Executive engagement in immigration policymaking also increased with the early twentieth century rise of the “modern presidency”—an institutional development that remade expectations and resources of the White House in terms of popular leadership, elections, shaping the domestic and foreign policy agenda, and control of the national administrative state.^[107] Presidents like Theodore Roosevelt and Woodrow Wilson, eschewing strict constructionist models of the executive office that sought to significantly restrain executive power, set about to mold immigration law and policy as they did other issues in national politics.^[108] Yet their aims were often thwarted by an independent‑minded legislative branch when it came to governing immigration. In 1917, Wilson’s veto pen was unable to stop Congress from enacting an unprecedented literacy test, head taxes, and a so‑called “Asiatic Barred Zone” designed to exclude all but northern and western European immigration.^[109]

In the following decades, immigration law and policy was largely the province of the legislative branch, with powerful modern presidents like Herbert Hoover and Franklin Roosevelt often deferring to bipartisan majorities in Congress who favored strict immigration restrictions.^[110] During the Cold War, the Truman and Eisenhower Administrations successfully championed refugee relief for displaced persons and those fleeing communist regimes, but their efforts to win expansive immigration reform were stymied by powerful nativists in Congress.^[111] In later years, formidable presidents such as Lyndon Johnson and Ronald Reagan battled and negotiated with Congress on the parameters of major immigration reforms like the Immigration and Nationality Act of 1965 and the Immigration Reform and Control Act of 1986.^[112] Moreover, all twentieth‑century modern presidents, including Johnson and Reagan, found Congress to be a significant rival or partner in conducting U.S. immigration policy.^[113]

Polarization and Congressional Gridlock

Through legislation and oversight, Congress retains considerable power to decisively influence the course of U.S. immigration law and policy. Yet deep partisan and ideological polarization of the legislative branch in general, along with the contentiousness of immigration in particular, have derailed numerous efforts to enact major immigration reform in the past quarter century.^[114] As political party organizations have been “hollowed out” by changes in campaign finance, media fragmentation, and party reforms, both major parties have lost their traditional ability to aggregate rival interests, broker intraparty and bipartisan compromises, and build lasting majority electoral coalitions.^[115] In response, single‑issue groups, media ideologues, and activists on the left and right have filled the void to create what scholars chronicle as the rise of “movement parties” in American politics.^[116] The decline of a traditional party establishment has eliminated a crucial gatekeeping function in the U.S. election process that has left the country’s political system vulnerable to extremist forces and demagogic candidates.^[117] This development has fueled a deep divide between the bases and congressional delegations of both major parties over immigration and refugee policy.^[118]

The ability of rival nativist and immigrant rights movements to gain significant influence in the Republican and Democratic parties, respectively, has dramatically expanded media and popular attention to the issue, heightened ideological polarization, and derailed Congress from enacting long overdue immigration reform.^[119] Pitched battles between defenders and opponents of immigration and noncitizen rights are hardly new to American political life; competing movements have fought over the direction of U.S. immigration law and policy since the nineteenth century.^[120] Yet whereas past conflicts produced deep intraparty divisions, with each party comprised of both immigration defenders and opponents, today’s Republican and Democratic parties reflect major interparty discord as hosts to warring nativist and immigrant rights movements.^[121] This seismic shift in national immigration politics intensified demands on contemporary presidents to take unilateral action, while also constraining their freedom to advance compromise or centrist positions.^[122] For twenty‑first century presidents, the order of the day is conciliating dominant movements, advocacy groups, media pundits, and fellow partisans within their political base in governance of immigrants, refugees, temporary foreign workers, and the border. Serious bipartisan efforts to enact significant policy innovations during the Bush and Obama Administrations ultimately floundered.^[123] These bipartisan bills in 2006 through 2007 and 2013 were cosponsored by prominent congressional leaders in both parties but were upended by grassroots opponents and media personalities; their opposition stemmed from compromise provisions for legalizing undocumented immigrants and strengthening border security that drew fire from activists on both sides of the issue.^[124] Amid legislative stalemate, pressure has increased on contemporary presidents to utilize their independent administrative powers to advance immigration policies that satisfy the demands of their partisan constituencies and electoral base.^[125]

From 2009 to 2020, the Obama and Trump Administrations were the first Administrations to govern immigration at a time when bipartisan compromise on the issue in Congress had disappeared altogether—leaving the legislative branch too divided to exercise its robust plenary power on the subject. Amid a legislative impasse on the issue, the Obama and Trump presidencies assumed outsized roles compared to their predecessors in using broad, unilateral executive power to secure policies that satisfied the demands of immigrant‑rights activists on the left and border hawks on the right.^[126] As a result, national immigration policy lurched dramatically when partisan control of the White House changed hands.^[127]

To strengthen his reputation for border security, President Obama began his first term by stationing National Guard troops along the nation’s southern border and stepping up enforcement efforts by detaining and deporting record numbers of undocumented immigrants.^[128] But under pressure from a youth‑led DREAMer movement^[129] and their progressive allies, Obama later used his unilateral executive discretion to initiate DACA to provide relief to 1.4 million undocumented young people. In addition, the Obama Administration initiated Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which promised to protect between four to five million additional undocumented immigrants.^[130] Although DAPA was ultimately blocked from taking effect due to a 4‑4 ruling in United States v. Texas, attributable to a vacancy on the Court that left a preliminary injunction in place,^[131] Obama’s use of unilateral executive powers to shape national immigration policy in his second term led immigration rights groups to tell reporters that it was “one of the rare times in history when the White House and activists are completely in agreement.”^[132]

After gaining the Oval Office in 2017, President Trump shifted national immigration policy in a restrictive direction with the stroke of a pen, using his control of unilateral executive powers and resources to enhance border security,^[133] institute a travel ban,^[134] issue fewer legal immigration visas,^[135] and enhance internal immigration enforcement.^[136] He did so at the behest and with the approval of a Republican base and nativist groups clamoring for new immigration crackdowns and barriers.^[137] Each of the Trump Administration’s actions affecting immigrant admissions and rights in his first term were consistent with campaign promises and with the strong ties forged between anti‑immigrant forces and a supportive Republican movement party.^[138]

Congressional stalemate on immigration has meant that twenty‑first‑century presidents are under enormous pressure from their partisan electoral bases and allied advocacy groups to use their independent executive powers to advance a decidedly partisan set of policy goals. As a result, unilateral presidential governance of immigration culminates in policy lurches to the left or right depending on which party controls the White House.^[139] In its second term, the Trump Administration is seeking even broader executive authority to carry out its immigration agenda by claiming sweeping emergency, or “prerogative,” power.^[140] Whereas the plenary power doctrine gives the executive branch considerable discretion when it acts consistent with immigration laws passed by Congress, prerogative power holds the key to largely unchecked, independent presidential control over immigration.

Immigration Governance as Presidential Prerogative

Whereas the plenary power doctrine has provided the political branches with considerable leeway to shape national immigration law and policy relatively free of normal judicial and constitutional constraints, prerogative power has the potential to give the White House exclusive, unrestrained control in this realm. Prerogative power is an area of extralegal discretionary authority that monarchs in the past, and presidents and prime ministers in the present, may exercise to guard the best interests of a nation, especially during times of emergency.^[141] As this Part discusses below, within the American political system, presidents alone have the capacity to seize prerogative power in the name of the public interest. In addition, the fact that these powers are invoked most often in response to declared crises usually has provided presidents and other executive officials with broad warrants to claim extralegal authority. Section II.A elucidates the theoretical origins and core principles of prerogative power from the seventeenth‑century philosophy of John Locke to the early American republic. Section II.B traces the use of prerogative power by presidents during the Civil War, the First World War, and the Second World War. Finally, Section II.C discusses the dangers of these precedents for fundamental civil liberties and constitutional democracy.

 Executives and Prerogative Power

As classically defined by the influential Enlightenment philosopher John Locke in his Second Treatise of Civil Government, prerogative power is the “power to act, according to discretion, for the public good, without the prescription of law, and sometimes even against it.”^[142] As Locke explained, such extralegal authority is justified because “it is impossible to foresee, and so by laws to provide for, all accidents and necessities that may concern the public.”^[143] The political theorist Larry Arnhardt later explained that Locke conceived of executive prerogative as “the power of the executive to act for the public good in those cases where action by the legislature would be impossible or ineffective.”^[144] In other words, investing prerogative power in a nation’s chief executive is occasionally necessary because legislators cannot foresee all circumstances when they pass laws and they cannot act quickly or decisively in response to emergency conditions.

Influenced by Locke, the architects of the U.S. Constitution breathed life into an independent presidency designed to check various problems they attributed to legislative supremacy (especially as it operated after the Revolution). The framers also expected national security, or “self‑preservation,” to be the American presidency’s top priority, a responsibility fortified by the “energy” and “dispatch” sewn into the nature of their unitary executive.^[145] Indeed, the ambiguity of presidential war powers in the Constitution and the broader elasticity of Article II provided room for the nation’s chief executives to exercise broad power in wartime.^[146] These blueprints laid the foundation for presidents to claim prerogative power in extreme circumstances, fostering secrecy, covert action, and executive aggrandizement during national security emergencies.^[147]

In both principle and practice, American governance endorses a Lockean conception of prerogative power that enables presidents to take extraordinary actions that may defy liberal constitutional norms in emergencies. For example, President Thomas Jefferson claimed prerogative power to justify his purchase of 828,000 square miles of the Louisiana Territory from France in 1803 without constitutional or statutory authorization, arguing that he was obligated to seize upon opportunity “which so much advanced the good of their country.”^[148] Jefferson later noted that “circumstances do not sometimes occur, which make it a duty in officers of high trust, to assume authorities beyond the law.”^[149] He presciently added that existential threats to the nation posed an even stronger rationale for executive use of prerogative power:

A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self‑preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.^[150]

Jefferson seized upon Lockean notions of prerogative power to justify his extralegal, unilateral purchase of French lands when the time and opportunity was ripe, arguing that his failure to capitalize on this chance to expand U.S. territory would have failed the public interest.^[151]

Locke’s theory of executive prerogative ultimately left an indelible mark on America’s founding generation. Jefferson’s foray into using prerogative power during his presidency would assume more urgent forms when his successors claimed similar warrants for extralegal, unilateral action to meet grave security threats. In particular, the nation’s later entanglement in warfare fundamentally recast the role of executive prerogative in managing dire national security crises.

Consolidating Executive Prerogative: Major Wars and Presidential Unilateralism

Whereas Jefferson’s brief invocation of executive prerogative in 1803 provided an early test of Lockean ideas, this emergency executive power found its most robust expression during three major declared wars: the Civil War, the First World War, and the Second World War. The nation’s commanders in chief during these wartime mobilizations varied markedly in how and why they deployed prerogative power to meet these security challenges. Over time, however, the exceptional use of prerogative power by the White House in perilous times consolidated precedents for unchecked executive unilateralism that could be invoked by ambitious presidents beyond extreme circumstances.

During the unprecedented crisis of the Civil War, Abraham Lincoln exercised sweeping prerogative power to preserve the union: taking broad actions like authorizing the military to arrest and detain persons without judicial review, raising an army without congressional endorsement, blockading Southern ports, and independently freeing slaves in Confederate territory.^[152] Reflecting on the challenges of balancing liberty and security in wartime, Lincoln famously asked: “Must a government of necessity be too strong for the liberties of its people, or too weak to maintain its own existence?”^[153] In contrast to his successors, Lincoln did not think his exercise of unilateral wartime authority should go unchecked by other branches of the federal government.^[154] Accordingly, he asked Congress to decide whether his military orders in response to Southern rebellion were permissible while legislators were in recess.^[155] He ultimately explained to Congress that these actions, “whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity, trusting then, as now, that Congress would readily ratify them.”^[156] Congress agreed, retroactively approving all of his military orders and actions.^[157] The judiciary soon followed suit: In The Prize Cases, the Court strongly affirmed the argument that Lincoln had unilateral authority to act militarily against the Confederacy; he was “not only authorized but bound to resist force by force.”^[158]

Significantly, Lincoln justified his military actions during the Civil War as “extra‑constitutional” powers that were necessary to address an unprecedented national emergency and inappropriate for politics as usual.^[159] As political scientist Benjamin Kleinerman observes, Lincoln’s extralegal framing of prerogative power defended maximal leeway for presidents to meet dire security crises, while denying legal footing for future executive actions that may entail an abuse of power.^[160] This conception of executive prerogative as extra‑constitutional and confined to wartime was quickly affirmed by other branches of government soon after the Civil War ended. After highlighting in 1866 that the “public safety” was now “assured,” the Supreme Court ruled in Ex parte Milligan that military tribunals could not exercise jurisdiction over civilians when the operations of regular courts are not threatened by armed conflict.^[161] Congress was more forceful in its repudiation of unilateral executive power after the war ended, passing laws in 1867 that stripped the White House of key powers and led to the impeachment and political demise of Lincoln’s successor, Andrew Johnson.^[162] By the time Ulysses S. Grant ascended to the presidency, the classic Whig principle of legislative supremacy again characterized national politics.^[163]

Following precedents set by Lincoln in his response to Southern rebellion, the Wilson and Roosevelt Administrations claimed broad prerogative powers during the First and Second World Wars. Yet in contrast to Lincoln, neither Wilson nor Roosevelt went to great lengths to justify their use of sweeping wartime authority or to exercise notable self‑restraint on executive power to preserve key constitutional liberties.^[164] Indeed, as the Wilson and Roosevelt Administrations confidently seized vast prerogative power, they received judicial support in their use of unrestrained national security authority. The Court’s endorsement of Roosevelt’s wartime authority to order a military tribunal to try German saboteurs in Ex parte Quirin^[165] in 1942 and to relocate and intern Japanese Americans and Japanese noncitizens in Korematsu v. United States^[166] two years later are landmark cases fortifying presidential prerogative power.

The terror cases during the Bush years—Rasul v. Bush^[167] and Hamdi v. Rumsfeld^[168] in 2004 and Hamdan v. Rumsfeld^[169] in 2006—placed modest constraints on executive branch treatment of terror detainees. They did not, however, place significant limits on the national security prerogatives of presidents. Tellingly, key Bush Administration officials came to view the unilateral powers that they exercised to address a perceived emergency not as extralegal prerogatives but as inherent in Article II of the Constitution. John Yoo, legal scholar and author of the “torture memos” while serving in Bush’s Office of Legal Council, later argued that the Constitution “gave Lincoln the authority to decide that secession justified military coercion, and the wide range of measures he took in response.”^[170] More generally, Yoo concluded that “the Chief Executive Clause” gave presidents “unique war powers” to respond to major threats “to the nation’s security.”^[171] This decidedly contemporary view of the American presidency, far removed from that of Lincoln’s time, in effect normalizes and consolidates unchecked executive powers by shifting them from extralegal actions to inherent emergency powers rooted in the constitutional order.

The “Loaded Weapon” of Prerogative Power

The dangers of granting presidents unfettered emergency powers are well‑illustrated by executive actions like Japanese internment during the Second World War. With none of Lincoln’s circumspection, Roosevelt ordered 114,000 men, women, and children of Japanese descent to what he himself called “concentration camps.”^[172] His attorney general, Francis Biddle, observed no hesitation or reflection about the decision: “I don’t think he was much concerned with the gravity or implications of this step.”^[173] In 1945, Yale law professor Eugene Rostow warned that Roosevelt’s Executive Order 9066—which authorized the forced removal of more than 110,000 people of Japanese descent from the West Coast to inland incarceration centers—established the proposition that “in time of war or emergency, the military . . . can decide what political opinions require imprisonment, and which ethnic groups are infected with them.”^[174] Consequently, “men, women and children of a given ethnic group, both Americans and resident aliens, can be presumed to possess the kind of dangerous ideas which require their imprisonment.”^[175] Justice Robert Jackson’s dissenting Korematsu opinion underscored the stakes of judicial validations of unconstitutional presidential orders in wartime. When courts “review and approve” extralegal presidential uses of prerogative power, Jackson concluded, “[t]he principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”^[176] Jackson’s powerful dissent thus presciently warned that the perils of the Roosevelt Administration’s oppressive actions would not be confined to the Second World War. Instead, they created precedents and tools readily available to future occupants of the Oval Office eager to deploy unchecked executive power against anyone they deem to be “enemies within.”^[177]

The expansion of unfettered executive power is one of the most important American constitutional and political developments of the past quarter century. Influential work by political scientists like William Howell and Terry Moe underscores the capacity of modern U.S. presidents to take unilateral action in a broad range of spheres.^[178] Richard Neustadt’s classic scholarship on the presidency suggests that presidential power is primarily derived from the ability of the nation’s chief executive to persuade other political actors to follow his or her lead.^[179] Yet Howell and Moe have shown that in the U.S. political system where separate institutions share power, presidents often can move first to create legally binding public policy without legislative approval.^[180] They can do so through unilateral directives such as executive orders, proclamations, and national security directives. Moreover, the capacity of Congress to answer these assertions of unilateral executive power is contingent upon legislative cohesion; a divided or fragmented Congress provides presidents with greater freedom to issue independent directives without resistance.^[181] Despite expansive room for contemporary presidents to shape public policy unilaterally, the Trump Administration contends that the imperatives of immigration control today demand even broader warrants for forceful executive action. On day one of its second term, the Trump Administration declared that an “invasion” of millions of unauthorized immigrants currently presents “significant threats to national security and public safety” because immigrants are “committing vile and heinous acts against innocent Americans.”^[182] To meet this challenge, the White House says it must employ wide national security powers to control porous borders and potentially dangerous noncitizens. As Part III explores, the Trump Administration’s invocation of the AEA in service of its immigration agenda raises important questions about whether even dubious assertions of emergency power can prevail in a deeply polarized political order that compromises constitutional democracy.

Presidential Prerogative and the Alien Enemies Act

On the campaign trail in 2024, Donald Trump frequently told voters that he would launch the nation’s largest‑ever mass deportation campaign in his second term, pledging to invoke an obscure eighteenth‑century law—the Alien Enemies Act of 1798 (AEA)—to do so.^[183] The appeal of this 226‑year‑old law to Trump advisers lies in its potential use in streamlining immigrant removal and creating broad presidential authority to summarily detain and deport noncitizens without due process.^[184] The 2024 Republican platform also highlighted the AEA as crucial to thwarting “the migrant invasion” and restoring “Law and Order.”^[185] The origins of this unpopular law—which was denounced but not repealed after the 1800 election—provide important clues about whether these assumptions are correct.^[186] So too do the three previous instances when the AEA has been invoked by U.S. presidents, each during major wars and each targeting noncitizens solely on their ancestral connections to a foreign belligerent.^[187]

 The Origins and Parameters of the Alien Enemies Act

The AEA was enacted in 1798 during tense naval conflicts between the United States and France, and it was one of four laws comprising the controversial Alien and Sedition Acts passed by Congress and signed by President John Adams that year.^[188] Each law was designed to curtail civil liberties and remove dangerous foreign nationals during national security crises. At the time, the pro‑British Federalists were particularly troubled by the presence of French refugees and “wild Irishmen” in the United States who supported a rival party: Thomas Jefferson’s Democratic‑Republicans.^[189] The AEA gave presidents broad authority to apprehend, detain, and remove noncitizens aged fourteen years or older from “a hostile nation or government” when that foreign country is in a “declared war” with the United States or has “perpetrated, attempted, or threatened” an invasion or raid against U.S. territory.^[190] The law’s language is clear about three conditions that must be met to invoke its sweeping authority to detain and deport noncitizens. The first is that the United States must be in a declared war, or it must be threatened by an invasion or predatory incursion entailing an armed attack on U.S. soil.^[191] The second is that the declared war, invasion, or incursion must be undertaken or threatened by the government of a foreign nation.^[192] Finally, the third condition requires the president to invoke the law in a proclamation and stipulate what regulations will be imposed on noncitizens defined as alien enemies.^[193]

The implementation of the Alien and Sedition Acts by the Adams Administration, particularly its restrictions on free speech under the Sedition Act, fueled a political backlash led by Jefferson and James Madison who drafted the Virginia and Kentucky Resolutions to denounce and defy these laws as tyrannical.^[194] However, Adams ultimately never invoked the AEA, since the United States did not declare war with France or any another country during his term.^[195] Two years after their adoption, the controversial Alien and Sedition Acts became a prominent issue in the pivotal national election of 1800, helping to discredit Adams and the Federalist party while propelling Jefferson and Democratic‑Republicans to a decisive victory and control of Congress and the White House.^[196] Two of these laws—the Sedition Act and Alien Friends Act—were authorized for only two years under sunset provisions and became defunct in 1801.^[197] Another law, the Naturalization Act of 1798, which increased the residency requirement for immigrants to become citizens from five to fourteen years, was repealed in 1801.^[198] Only one law with no sunset clause because it was thought to be confined to wartime and received the most votes, the AEA, survived.^[199] Crucially, Madison, Jefferson, and the new Democratic‑Republican majority in control of Congress after 1800 viewed executive authority under the AEA as less threatening compared to other 1798 laws because the Constitution, in Madison’s words, “expressly delegated to Congress the power to declare war against any nation, and, of course, to treat it and all its members as enemies.”^[200] In other words, Madison and others interpreted the presidential powers exercised under the AEA as contingent upon war declarations by Congress.^[201] Significantly, in keeping with this Madisonian assumption, presidential invocations of the AEA have been extremely rare in U.S. history and limited to only formally declared wars.^[202] In short, the AEA was designed for extreme circumstances and was never intended to be a routine feature of governing noncitizens living in the United States.

Three Wartime Invocations of the AEA

American presidents have invoked the AEA three times, all during wars declared by Congress.^[203] The first time the law was invoked was by President James Madison during the War of 1812, a nearly three‑year conflict with Great Britain over maritime rights.^[204] Nearly a month after Congress declared war in June of 1812, Madison’s Administration issued a proclamation that “all the subjects of his Britannic Majesty, residing within the United States, have become alien enemies.”^[205] British nationals were required under the presidential proclamation to report to the government their age, home address, length of residency, and whether they applied for naturalization.^[206] In circulars distributed in U.S. states and territories, British immigrants were also instructed that they would be detained if they refused to move forty miles from the coast, and away from cities such as Boston, New York, Philadelphia, and Washington, D.C.^[207] In one of the first judicial interpretations of the regulatory power accorded presidents under the AEA—Lockington v. Smith—the lower court concluded that the authority executives exercised over enemy aliens in times of war was “as unlimited as the legislature could make it.”^[208] The AEA lay fallow for more than a 102 years after the War of 1812—a reflection of how truly rare invocations of the AEA have been across U.S. history.

On April 6, 1917, the same day that Congress declared war on Germany and the United States formally entered World War I, President Woodrow Wilson invoked the AEA.^[209] In his proclamation triggering the law’s authority, Wilson stated that noncitizens living in the United States originally from Germany and other Central Powers were “enemy aliens” who “shall be undisturbed in the peaceful pursuit of their lives and occupations,” so long “as they shall conduct themselves in accordance with law.”^[210] In carrying out the proclamation, Wilson’s Administration issued a strict set of regulations that required all German and Austro‑Hungarian noncitizens to be entered into a federal registry, fingerprinted, and photographed; required them to surrender any wireless devices, radios, firearms, or any other weapons; barred them from traveling by airplane; and prohibited them entering or living in Washington, D.C. or within one‑half mile from any government fort, camp, arsenal, aircraft station, naval yard, or munitions factory.^[211] Wilson empowered federal agents to closely monitor the German and Austro‑Hungarian populations during the war, surveilling their mail and finances and interrogating their employers and neighbors.^[212] His Administration also instructed enemy aliens to “not write, print, or publish any attack or threats against the Government,” and detained noncitizens for unpatriotic speech and writings, including private letters.^[213] In contrast to Wilson’s assurance at the war’s start that enemy aliens would face few restrictions, six thousand German and Austro‑Hungarian foreign nationals were ultimately arrested and sent to internment camps in Georgia and Utah.^[214]

Finally, the third and most famous invocation of the AEA came during the Second World War, only hours after Japan attacked Pearl Harbor in 1941.^[215] President Franklin Roosevelt proclaimed German, Italian, and Japanese noncitizens to be enemy aliens and imposed many restrictions that were comparable to those invoked during the First World War.^[216] These restrictions included mandatory registration requirements, limits on housing, jobs, and possessions, and intensive government surveillance.^[217] Hours after the Japanese warplanes bombed Pearl Harbor, the Roosevelt Administration began rounding up Japanese, German, and Italian noncitizens, citing the AEA, the invasion by Japan, and threats of invasion by Germany and Italy.^[218] Initially, Roosevelt contemplated using the AEA to intern all of the nation’s roughly 1.2 million German‑born population before his advisers persuaded him that such an act would be politically and practically challenging, especially because the German population was widely distributed across the country.^[219] All told, roughly ten thousand German noncitizens and a few thousand Italian foreign nationals spent the war imprisoned in internment camps.^[220] However, Roosevelt also infamously issued Executive Order 9066 to remove and incarcerate nearly all people of Japanese descent from the West Coast.^[221] Whereas controls imposed by presidents under the AEA can only be applied to noncitizens, Roosevelt’s sweeping executive order enabled executive officials and the military to relocate and to imprison in detention camps the vast majority of Japanese noncitizens and Japanese‑American citizens on the West Coast—an order upheld by the Supreme Court that authorized the internment of more than one hundred thousand Japanese Americans and noncitizens for the war’s duration.^[222] Writing for the majority in the Korematsu decision, Justice Hugo Black notoriously noted that although racial restrictions under the executive action were “immediately suspect” and subject to the “most rigid scrutiny,” they are not always unconstitutional and were in fact a justified military necessity in the case of Japanese‑American removal.^[223]

Three years after the end of the Second World War, the Court reinforced the breadth and depth of its deference to the executive branch on national security matters under the AEA in its landmark Ludecke v. Watkins decision.^[224] The petitioner, Kurt Ludecke, was a German national who, in support of Nazi ideology, founded the Swastika League of America in 1935. The FBI arrested him in 1941, and he was interned at Ellis Island under Roosevelt’s AEA proclamation.^[225] In 1946, the U.S. Attorney General ordered Ludecke’s deportation from the country under authority of Roosevelt’s invocation of the AEA, despite the fact that Germany had unconditionally surrendered in 1945.^[226] Ludecke’s habeas corpus petition challenged his ordered removal on the grounds that the cessation of war with Germany ended the president’s war powers under the AEA and that he was thus entitled to a judiciary hearing.^[227]

In a close 5‑4 ruling, the Ludecke majority stated that courts were unqualified to determine when wars formally end, since this decision was unquestionably a political one.^[228] As Justice Felix Frankfurter wrote for the majority: “It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilities do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come.”^[229] The Court went further by endorsing the executive branch’s wide discretion in its use of the AEA during the “declared war” with Germany, inasmuch as Congress thus empowered the presidency both under the AEA and by formally declaring war on December 11, 1941.^[230] While conceding that the president’s “great war powers may be abused,” the Court quickly added that it “is a bad reason for having judges supervise their exercise.”^[231] It concluded “that full responsibility for the just exercise of this great power may validly be left where the Congress has constitutionally placed it—on the President of the United States.”^[232] Accordingly, the Ludecke decision ultimately endorsed vast unilateral authority for presidential administrations to govern enemy aliens under the AEA during wars declared by Congress and the importance of judicial deference to the political branches on these questions. The Court in effect signaled that the executive branch could exercise vast authority to detain and remove noncitizens in the name of national security even outside of wartime—a lingering invitation for Roosevelt’s successors to the presidency.

Mass Deportation, the Trump Administrations, and the Alien Enemies Act

For more than seventy‑five years after the Second World War, no American president employed the AEA to regulate, detain, or deport noncitizens living in the United States. Seven weeks into his second term, however, President Trump wasted little time in invoking the AEA as a potent means of supercharging his mass deportation agenda. On February 20, 2025, Secretary of State Marco Rubio designated the violent Venezuelan street gang, Tren de Aragua (TdA), a foreign terrorist organization.^[233] On March 14, 2025, President Trump fulfilled his campaign promise by invoking the AEA, authorizing immigration officers to seize, detain, and remove Venezuelan noncitizens as enemy aliens.^[234] The proclamation stipulated that “all Venezuelan citizens 14 years of age or older who are members of TdA, are within the United States, and are not actually naturalized or lawful permanent residents of the United States are liable to be apprehended, restrained, secured, and removed as Alien Enemies.”^[235] A pivotal threshold for the authority of the Trump White House to deploy the AEA lies in its requirement that either a foreign nation is in a “declared war” with the United States or has “perpetrated, attempted, or threatened” an invasion or raid against U.S. territory.^[236] The Administration’s answer to these challenges is an argument that TdA has infiltrated the Venezuelan government led by President Nicolás Maduro, making it a “hybrid criminal state” that is sending gang members to the United States to perpetrate “drug trafficking as a weapon against our citizens.”^[237] Venezuelan immigrants are thus alleged to have “infiltrated the United States” and “conduct[ed] irregular warfare and undert[aken] hostile actions against the United States.”^[238] Accordingly, the Trump Administration has declared that Venezuelan noncitizens with alleged ties to TdA and fourteen years or older are thereby enemy aliens whose presence on U.S. soil is tantamount to an invasion by a hostile foreign government, making them legitimately subject to removal under the AEA.^[239]

The Trump Administration’s application of the AEA to Venezuelan migrants triggered several legal challenges over whether the eighteenth‑century law may be used to expedite deportation of these noncitizens. The first was a March 2025 class action and habeas corpus lawsuit, J.G.G. v. Trump, filed by the American Civil Liberties Union (ACLU) on behalf of five Venezuelan noncitizens held in immigration custody who faced imminent removal.^[240] The same day the suit was filed, Judge James Boasberg of the District Court for the District of Columbia issued a temporary restraining order blocking removal of the five plaintiffs.^[241] But the White House responded that the court order came too late on a Saturday night;^[242] it had already deported the five plaintiffs and 233 additional Venezuelan immigrants to El Salvador, arguing that en route planes carrying the immigrants to El Salvador were outside of the judge’s jurisdiction.^[243] “Oopsie. Too late,” Nayib Bukele, president of El Salvador, posted on the social media platform X on March 16, words that U.S. Secretary of State Marco Rubio soon reposted. In district court, administration officials failed to offer evidence to support their claims that the deported Venezuelans had been charged with any crimes or were affiliated with the TdA gang.^[244] ICE officials testified that “the lack of specific information about each [deported Venezuelan] individual actually highlights the risk they pose” as it “demonstrates that they are terrorists with regard to whom we lack a complete profile.”^[245]

The Department of Justice appealed Boasberg’s restraining order to the Court of Appeals for the District of Columbia, where the appeal was denied.^[246] One judge even noted during oral arguments that “Nazis got treated better under the Alien Enemies Act” in the 1940s compared to the immediate removal of 238 Venezuelans without the opportunity to challenge their deportation.^[247] In April 2025, the Supreme Court in a per curiam decision vacated Boasberg’s temporary restraining orders on the grounds that the habeas corpus petitions for the five Venezuelans were wrongly filed in the District of Columbia. Rather, they needed to be filed in Texas, where they were last detained on U.S. soil.^[248] The Court did not decide whether the Trump Administration’s invocation of the AEA was constitutional. However, notably, the Court did determine that persons detained by the Trump Administration under its proclamation are entitled to notice of the legal basis of their apprehension and detention, as well as the right to challenge its legality through habeas corpus petitions.^[249]

In W.M.M. v. Trump, the Fifth Circuit took up the fundamental question of whether the Trump Administration’s invocation of the AEA was lawful.^[250] The lawsuit was originally filed by the ACLU on behalf of detained Venezuelan immigrants who faced deportation as alien enemies under the president’s March proclamation.^[251] In its September 2025 ruling, the Fifth Circuit pointed to the 1948 Ludecke decision as precedent that “allows a court to determine whether a declaration of war by Congress remains in effect, or whether an invasion or a predatory incursion has occurred. In other words, those questions are justiciable, and the executive’s determination that certain facts constitute one or more of those events is not conclusive.”^[252] The Fifth Circuit had laid down the gauntlet, arguing that executive power over immigrants and other foreign nationals was not unlimited even when national security issues arose.

After establishing that federal courts are permitted to assess whether presidential invocations of the AEA measure up to its stated requirements, the Fifth Circuit majority carefully described the circumstances in which the Act is germane:

Congress’s use of the word in the AEA is consistent with the use in the Constitution, that “invasion” is a term about war in the traditional sense and requires military action by a foreign nation. Petitioners have the sense of the distinctions in saying that responding to another country’s invasion is defensive; declaring war is an offensive, assertive action by Congress; and predatory incursion is for lesser conflicts. Of course, after this country has been attacked by an enemy with invading forces, Congress might then declare a war. That occurred in World War II after the attack on Pearl Harbor. Still, when the invasion precedes a declaration, the AEA applies when the invasion occurs or is attempted. Therefore, we define an invasion for purposes of the AEA as an act of war involving the entry into this country by a military force of or at least directed by another country or nation, with a hostile intent.^[253]

In short, the majority was raising strong doubts that the Trump Administration’s invocation of the AEA measured up to the law’s requirements. Absent a congressionally declared war with Venezuela, the Fifth Circuit majority closely scrutinized the Administration’s claims about the TdA’s alleged drug smuggling, the alleged facilitation by Venezuelan officials of unauthorized immigration, and other potential criminal activities. It concluded that none of these alleged activities qualified as an invasion or predatory incursion by a foreign sovereign nation, thereby making Trump’s proclamation “unlawful.”^[254] At the end of September 2025, the Fifth Circuit acceded to the government’s request to rehear the case en banc and vacated its three‑judge ruling earlier in the month.^[255]

The Fifth Circuit’s initial ruling in W.M.M. v. Trump highlights the formidable legal hurdle that the Trump Administration faces in claiming broad authority under the AEA for peacetime use in defiance of both the letter of the law and the historical precedents of three declared wars.^[256] Interestingly, the Fifth Circuit originally seized upon the landmark Ludecke decision as affirmation that the courts may evaluate the validity of presidential proclamations under the AEA.^[257] Yet the Ludecke precedent may also be read by the Roberts Court as reinforcing wide judicial deference to presidents’ decisions on political questions related to foreign policy and national security matters.^[258] Indeed, the textual and historical boundaries of the AEA may be of little consequence if the Court decides that the executive branch’s identification of an invasion by a foreign nation is determinative and not subject to judicial review. This possibility provides legal room, however dubious, for the Trump Administration’s unprecedented claim that international drug cartels control foreign regimes and that migrants from those countries are “enemy aliens” under the 1798 law. If, however, the Court joins lower courts in finding President Trump’s proclamation to be unlawful, a different statute—the Immigration and Nationality Act of 1952 (INA)—also provides the nation’s chief executives with broad warrants to govern immigration and noncitizens residing in the country.^[259]

Security Powers and the Immigration and Nationality Act of 1952

Whereas the AEA has equipped presidents with broad, unrestrained authority over noncitizens identified as enemy aliens during wartime, the INA was designed to operate outside of major wartime crises and thus has more regularly provided presidents with immigration powers since the 1950s.^[260] The INA, or the McCarran‑Walter Act (named for its chief congressional architects, Senator Pat McCarran and Representative Francis Walter), is a massive federal law that was authored by congressional border hawks during a time when anticommunist red scares and racist national origins quotas dominated national immigration law and politics.^[261] In championing passage of the INA, McCarran proclaimed the 1952 law stopped “out‑and‑out Reds” and “misguided liberals” from “opening the floodgates of unlimited immigration” that would have “destroyed the national security of the United States.”^[262] Ironically, while the INA established new immigration authority for the executive branch, Cold War era Presidents Harry S. Truman, Dwight Eisenhower, and John F. Kennedy opposed the law as xenophobic and isolationist at a time when their administrations hoped to project the United States as “an open society.”^[263] Although some of the law’s harshest and most discriminatory features—such as exclusions based on sexual orientation and the national origins quota system that reserved most immigrant visas for northern and western Europeans—were removed by Congress over time, many of the sprawling law’s provisions endure and currently serve as a legal basis for some of the most controversial immigration crackdowns undertaken by President Trump.^[264] The most prominent of these efforts include the arrest and detention of noncitizens associated with pro‑Palestinian protests, the reintroduction of registration requirements for noncitizens, and the institution of a new travel ban barring foreign nationals of twelve countries from entering the United States, along with major restrictions on those from seven other nations.^[265]

The security powers created by the INA and used by the Trump Administration to exclude, regulate, and remove noncitizens are elucidated in Part IV across three sections. Section IV.A illuminates the rarely used authority of the U.S. Secretary of State under the INA to target for deportation noncitizens deemed adverse to American foreign policy interests—a provision used by President Trump to punish foreign nationals who engaged in pro‑Palestinian protests. Section IV.B focuses on mandatory noncitizen registration requirements codified in the INA and invoked by Trump’s DHS to advance its crackdown on undocumented immigrants residing in the country. Finally, Section IV.C traces to the INA a renewed travel ban suspending the entry of foreign nationals from non‑European countries in Trump’s second term.

Noncitizen Free Speech versus Foreign Policy Interests

At the start of its second term, the Trump Administration seized upon several key provisions of the INA to advance its immigration agenda, pointing to these elements of the 1952 law as a license to exercise sweeping unilateral executive powers to exclude, regulate, and deport noncitizens it deems unfit or dangerous.^[266] One of the first INA provisions employed by Trump officials in 2025 is section 237(a)(4)(C), which the Administration attempted to use as a tool to arrest and deport noncitizen students for engaging in pro‑Palestinian speech.^[267] This little‑known provision of the INA gives the executive branch considerable discretion to remove noncitizens residing in the country, ranging from temporary workers and foreign students to legal permanent residents, on the grounds that they negatively impact American geopolitical interests.^[268] The statutory provision specifically states that “[a]n alien whose presence or activities in the United States has reasonable ground to believe would have potentially serious adverse foreign policy consequences . . . is deportable.”^[269] Critics of this Cold War era section of the INA note that it “simply requires the Secretary [of State] to have ‘reasonable ground to believe’ . . . that the noncitizen’s presence or activities would have potentially serious adverse foreign policy consequences.”^[270] The result, they argue, is a dangerous magnitude of executive discretion: “By purportedly giving unfettered discretion to an executive official to decide that someone lawfully present in the United States is deportable, [section 237(a)(4)(C)] is a stark outlier among all the deportability grounds.”^[271]

President Trump entered office lamenting that university campuses “have been infested with radicalism like never before,” becoming hotbeds of antisemitic, “pro‑jihadist protests.”^[272] He vowed to combat this activity with “forceful” and “unprecedented” executive action, placing special emphasis on deporting “resident aliens” and revoking the student visas of “Hamas sympathizers on college campuses.”^[273] The first and highest‑profile target of this Administration initiative was Mahmoud Khalil, a Columbia University graduate student and pro‑Palestinian activist with legal permanent residency, a U.S. spouse, and no previous criminal record. In early March 2025, the Trump Administration invoked section 237(a)(4)(C) against Khalil by arresting him and placing him in immigration detention awaiting permanent removal.^[274] Pursuant to his judgment that Khalil was a “deportable alien under INA section 237(a)(4)(C),” Secretary of State Marco Rubio issued a memo stating Khalil’s participation in “antisemitic protests and disruptive activities” was damaging to national foreign policy because it fostered “a hostile environment for Jewish students in the United States” and undermined “U.S. policy to combat anti‑Semitism around the world.”^[275] President Trump subsequently declared in March 2025 that Khalil’s arrest was “the first . . . of many to come.”^[276] Following Khalil’s arrest, the Trump Administration subsequently invoked INA’s section 237(a)(4)(C) against other noncitizen students. Examples of these arrests included Yunseo Chung and Mohsen Mahdawi, both of whom are Columbia University students, legal permanent residents and past participants in pro‑Palestinian protests, and Rümeysa Öztürk, an international student at Tufts University who had her student visa revoked and was held in ICE detention for coauthoring an editorial “in support of Hamas.”^[277] Footage of masked ICE agents arresting a terrified Öztürk on a street in Somerville, Massachusetts, gained widespread news coverage.^[278] Similar to the Khalil detention, Secretary of State Rubio invoked INA authority in alleging Öztürk undermined U.S. foreign policy interests because she supported “movements that are involved in doing things like vandalizing universities, harassing students, taking over buildings, creating a ruckus.”^[279]

Early litigation has challenged the Trump Administration’s use of INA section 237(a)(4)(C), arguing that ICE arrests and detentions on the basis of noncitizen speech and activism violate the Due Process Clause and the First Amendment.^[280] On May 28, Judge Michael Farbiarz of the U.S. District Court for the District of New Jersey ruled that deporting Khalil under section 237(a)(4)(C) would likely be unconstitutional because the grounds for deportation under the provision should be construed as narrower than the Administration contends.^[281] In particular, the judge found that the secretary of state must show that a noncitizen’s presence in the United States might cause imminent harm to the lives or property of Americans abroad or violate U.S. treaty obligations.^[282] His decision also noted that Rubio’s enforcement of this “vague” provision of the INA “veers too far away from the standard set down by Congress.”^[283] As of January 2026, the Third Circuit reversed the district court opinion on jurisdictional grounds, but appeals in the case of Khalil v. Joyce are ongoing.^[284]

The Trump Administration’s deployment of an obscure provision of the INA to detain and remove foreign nationals who participated in pro‑Palestinian protests closely parallels its invocation of the seldom‑used AEA. Both entail an aggressive effort to claim vast unilateral executive power to control and punish noncitizens perceived as deviant or undesirable. At stake in struggles over the fate of legal permanent residents like Khalil and international students like Öztürk is whether the constitutional free speech rights of noncitizens are expendable whenever an administration claims their words are detrimental to U.S. foreign policy interests.

Mandatory Noncitizen Registration

Another tool the INA has provided the Trump Administration with in its second‑term immigration crackdown is the authority to require noncitizens to register with the federal government and submit biometric information.^[285] Sections 261 through 266 of the INA empower the executive branch to impose intrusive registration and tracking orders for noncitizens who remain in the United States for more than thirty days.^[286] These INA provisions provide a statutory source for various forms of noncitizen registration and punitive, legal consequences for defying government requirements, including fines, imprisonment, and deportation.^[287] The origins of noncitizen registration requirements in the United States reach as far back as the late nineteenth century, specifically to Chinese exclusion laws. Such legislation mandated Chinese immigrants living in the country to submit their name, age, occupation, last place of residence, personal description, and other “facts of identification” to government officers; these disclosures later became the basis of registry books kept at customs houses.^[288]

In 1940, Congress responded to fears of foreign agents infiltrating the nation after hostilities broke out in Europe by enacting the Alien Registration Act.^[289] Under this new law, all noncitizens residing in the United States for thirty days or more were obligated to register and be fingerprinted at a local post office, and to report their current address to immigration officials every ninety days.^[290] Many of the mandates of the Alien Registration Act were codified in the INA of 1952, adding the obligation that all noncitizens who were registered and fingerprinted must carry proof of registration at all times or face possible fines and prison terms.^[291]

President George W. Bush drew on INA sections 261 through 266 when he established a registry for noncitizens following the terrorist attacks of 9/11.^[292] In 2002, his Administration created the National Security Entry‑Exit Registration System, which targeted noncitizens over fourteen years of age or older.^[293] Under the anti‑terror program, noncitizen registrants were ordered to submit biometric information, check in regularly with immigration authorities, and only enter the country through designated ports of entry.^[294] These two early precedents for noncitizen registration were fueled by national security emergencies—first the Second World War and then an unparalleled terrorist attack on U.S. soil.

At the start of its second term, the Trump Administration drew upon provisions of the INA to initiate significant registration requirements for noncitizens living in the United States. In a February 2025 executive order, the Administration ordered noncitizens residing in the country for thirty days or longer to register with the federal government if they have not already done so through a visa application or other legal immigration process.^[295] Under the order, President Trump instructed DHS to implement a new alien registration requirement as part of its crackdown on undocumented immigrants.^[296] Relying on the INA’s section 262, DHS issued a final rule in April 2025 requiring all noncitizens above the age of fourteen to register with the federal government and be fingerprinted.^[297] The rule also mandates that parents or guardians must register noncitizen children under the age of fourteen.^[298] In addition, adult noncitizens must always carry “evidence of registration,” or be subject to detention and deportation.^[299] Failure to comply with these requirements will result in criminal and civil penalties and serve as grounds for removal.^[300] The Trump Administration argues that its immigrant registration requirement legitimately draws on authority that has been in the legal code since 1952.^[301]

A Renewed Travel Ban

In both his terms in office, President Trump has made decisive use of additional provisions of the seventy‑three‑year‑old INA to unilaterally impose a travel ban on foreign nationals from particular countries.^[302] The INA’s sections 212(f) and 215(a) state that a president “may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”^[303] These sections of the INA have provided an effective legal rationale for the Trump Administration to impose a new travel ban early in in his second term.^[304]

The foundations of Trump’s 2025 travel ban can be traced to his determined effort to order restrictions on immigration through sections 212(f) and 215(a) in his first term. One week after taking office in 2017, President Trump controversially signed the first of three executive orders on immigration meant to fulfill his campaign pledge of a “total and complete shutdown of Muslims entering the United States.”^[305] When challenged in court, the Justice Department insisted that decades of precedent made the immigration actions of presidents “unreviewable” since “the courts cannot evaluate the President’s national security and foreign affairs judgments, especially in the immigration context.”^[306] After this first executive action was enjoined by courts in the Ninth Circuit,^[307] the Trump Administration on March 6, 2017, issued a revised order imposing a slightly narrower set of exclusions on migrants from Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. When the Trump Administration again insisted that the judiciary could not review executive branch immigration orders, the Fourth and Ninth Circuits forcefully rejected these absolutist claims of limitless executive immigration plenary power.^[308] The Ninth Circuit rejected the president’s assertion that the executive’s “broad discretion over the admission and exclusion of aliens” is “boundless,” clarifying that “[w]hatever deference we accord to the President’s immigration and national security policy judgments does not preclude us from reviewing the policy at all.”^[309] The Fourth Circuit came to the same conclusion, writing that “the deference we give the coordinate branches is surely powerful, but even it must yield in certain circumstances, lest we abdicate our own duties to uphold the Constitution.”^[310] The majority then issued a scalding rebuke of the travel ban, describing it as “an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”^[311]

In September 2017, the Trump Administration issued a third, less expansive travel ban order^[312] that was ultimately upheld by the Supreme Court in its 5‑4 Trump v. Hawaii decision issued during the summer of 2018.^[313] The majority opinion, written by Chief Justice John Roberts, skirted significant evidence of discriminatory motive and returned to a familiar refrain that presidents and executive branch officials command broad powers to restrict the entry of noncitizens in the name of national security.^[314] The Trump v. Hawaii ruling reaffirmed that when invoking the INA’s sections 212(f) and 215(a), the White House exercises vast authority over the entry, exclusion, and removal of noncitizens in the twenty‑first century.^[315]

After the Trump Administration faced legal struggles following its attempt at a “Muslim ban” during its first term—which was later revised and approved by the Court—the Administration devoted months of agency planning in 2025 before issuing a new travel plan.^[316] The State Department was charged with performing an expansive global security review of “high‑risk regions” to pinpoint which countries of origin should be placed under travel restriction.^[317] Various executive agencies analyzed country‑level factors such as terrorist activity, visa security cooperation, a country’s ability to verify travelers’ identities, record keeping of nationals’ criminal histories, as well as the rate of illegal visa overstays.^[318] Citing this agency research, President Trump issued a new travel ban on June 4, 2025, based on “the authority vested in [him] by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a) of the INA.”^[319] The executive order prohibits travel to the United States by citizens of Afghanistan, Myanmar, Chad, the Republic of Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen.^[320] It also denies immigrant and students visas to people from Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, and Venezuela.^[321] “We will not allow people to enter our country who wish to do us harm, and nothing will stop us from keeping America safe,” Trump declared in a video posted by the White House.^[322] National security imperatives lie at the heart of the INA’s delegation of broad presidential power over immigration policy, a reflection of the strong anti‑communist and anti‑immigrant forces in Congress when it was adopted in 1952.^[323] The Trump Administration effectively drew upon on these provisions to seize broad legal authority for advancing his hard-line immigration agenda.

Conclusion

For most of American history, national immigration law and policy have been shaped by separate governing institutions sharing decision‑making authority. From the country’s founding until the late nineteenth‑century Gilded Age, states, port cities, and local governments loomed large in screening immigrants and governing the lives of noncitizens. For roughly 120 years that followed, Congress and the executive branch both clashed and collaborated in creating and implementing U.S. immigration policy. Yet during the twenty‑first century, this Article underscores how American presidents have increasingly exercised broad, unilateral control over immigration matters, defying constitutional checks and balances and upending stable governance each time the White House changes partisan hands. Trump’s executive orders, proclamations, and actions at the start of his second term capture an administration determined to assert unprecedented authority over the entry, exclusion, and removal of noncitizens. These unprecedented maneuvers raise significant questions about the sources and potential limits of this authority in an era marked by profound challenges to constitutional democracy.

This Article shows that the wellsprings of contemporary presidential dominance over immigration can be traced to several key historical and contemporary developments. First, the elastic language of Article II of the Constitution has allowed occupants of the Oval Office over time to claim far‑reaching unilateral power as part and parcel of their institutional responsibilities. Second, the plenary power doctrine, beginning in the 1880s, gave the political branches sovereign control over territorial boundaries and reinforced judicial deference on immigration matters given their connection to foreign affairs. Third, the rise of the immigration enforcement state combined with congressional polarization and gridlock fueled new expectations and pressures for twenty‑first century presidents of both parties to act unilaterally in service of their constituencies and rival visions of the national interest. Finally, the Trump Administration has claimed sweeping executive prerogative powers usually reserved to wartime emergencies to energize its mass deportation initiatives and other immigration priorities. This claim of national security prerogatives lies at the heart of its controversial invocations of the Alien Enemies Act and the Immigration and Nationality Act to further its agenda.

The Trump Administration’s executive actions invoking the AEA do not respond to a true national security crisis in comparison to the three formally declared wars—the War of 1812, the First World War, and the Second World War—when the law has previously been applied. Similarly, Trump Administration efforts to incarcerate and remove noncitizens for merely exercising free speech in pro‑Palestinian protest campaigns also test the security‑driven warrants for executive authority under the INA. Neither of these dubious assertions of emergency power should survive constitutional scrutiny, and various doctrines or rationales for deference should not prevent the judiciary from imposing at least some restraint on clear statutory and constitutional violations. Yet as Justice Jackson grimly warned in his Korematsu dissent, the “loaded weapon” of prerogative or emergency power has rested for decades on the Resolute Desk, ready for the hand of any president who “can bring forward a plausible claim of an urgent need.”^[324] Whether the Court accedes to every emergency claim that presidents offer to advance their immigration agendas, or whether such an emergency claim rises to meet the constitutional crises produced by unrestrained presidential authority—the result will have lasting implications for the future of noncitizen rights and immigration governance. Yet it also is crucial to remember that the broad discretion presidents exercise under the plenary power doctrine, the AEA, and the INA are contingent upon delegations of authority from Congress. Any hope of restoring checks and balances in national immigration law and policy rests upon not only judicial restraints on executive aggrandizement, but also a return of congressional will and judgment in this contentious and transformative policy realm.

 

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* Philip H. Knight Chair of Political Science and Co Director of the Wayne Morse Center for Law and Politics, University of Oregon. The author is grateful to the editors of the University of Colorado Law Review for their constructive feedback and outstanding support for this Article. He also would like to thank his generous colleagues and friends who have been sounding boards for this piece and related projects, especially Robert Bussel, Alison Gash, James Hollifield, Anna Law, Sidney Milkis, and Elaine Replogle.

1. The “modern presidency” refers to a major shift in the role, power, and expectations of the U.S. presidency in the early twentieth century as it became a leading instrument of the popular will, using direct appeals to the public and media to shape public opinion and the national political agenda. The modern presidency also is associated with increased centralized power and an increased presence as a leader in national and global affairs. See generally Sidney Milkis & Michael Nelson, The American Presidency: Origins and Development, 1776‑2021 (9th ed. 2022); Jeffrey Tulis, The Rhetorical Presidency (2d ed. 2017); Doris Kearns Goodwin, The Bully Pulpit: Theodore Roosevelt and the Golden Age of Journalism (2013). ↑
2. See, e.g., James G. Gimpel & James R. Edwards, Jr., The Congressional Politics of Immigration Reform (1st. ed. 1998); Gerald L. Neuman, The Lost Century of American Immigration Law (1776–1875), 93 Colum. L. Rev. 1833 (1993); Daniel J. Tichenor, Dividing Lines: The Politics of Immigration Control (2002). ↑
3. The “vesting clauses” of the U.S. Constitution are comprised of three provisions—Articles I, II, and III—that establish the separation of powers and checks and balances among the three branches of the federal government by granting legislative powers to Congress, executive powers to the Presidency, and judicial powers to the federal courts. Article II states that “[t]he executive Power shall be vested in a President of the United States of America.” U.S. Const. art. II, § 1, cl. 1. For thoughtful analysis on the vesting clauses of the U.S. Constitution, see Gary Lawson, Delegation and Original Meaning, 88 VA. L. Rev. 327 (2002); Julian Davis Mortenson, The Executive Power Clause, 167 U. Pa. L. Rev. 1269 (2020); Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1155 (1992); and Jed Shugerman, Vesting, 74 Stan. L. Rev. 1479 (2022). Article II and the elastic powers of the presidency over time are discussed at some length in Part I of this Article. ↑
4. The plenary power doctrine refers to the broad grant of authority given to the U.S. Congress and executive branch to establish and enforce laws for the entry, exclusion and removal of noncitizens. The origins of this strong deference doctrine are traditionally tied to Chae Chan Ping v. United States, 130 U.S. 581 (1889), also known as the Chinese Exclusion Case. The Supreme Court’s willingness to give the political branches exceptional authority over immigration matters stems from their distinctive role in advancing the government’s interests in foreign affairs and national security. The plenary power doctrine is deeply controversial and has inspired wide criticism in the scholarly literature for decades. The development and durability of the plenary power doctrine in U.S. immigration law will be discussed in Part I of this Article. See infra Part I. For a survey of canonical understandings of the plenary power doctrine and a range of scholarly critiques, see David A. Martin, Due Process and Membership in the National Community: Political Asylum and Beyond, 44 Pitt. L. Rev. 165 (1983); Stephen H. Legomsky, Immigration and the Judiciary: Law and Politics in Britain and America 177–218 (1987); Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1, 124–34 (2002); Adam B. Cox, Citizenship, Standing, and Immigration Law, 92 Calif. L. Rev. 373, 378–90 (2004); Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 Harv. L. Rev. 853, 858–63 (1987); Berta Esperanza Hernández‑Truyol, Nativism, Terrorism, and Human Rights—The Global Wrongs of Reno v. American‑Arab Anti‑Discrimination Committee, 31 Colum. Hum. Rts. L. Rev. 521, 538–46 (2000); Linda Kelly, Preserving the Fundamental Right to Family Unity: Championing Notions of Social Contract and Community Ties in the Battle of Plenary Power Versus Aliens’ Rights, 41 Vill. L. Rev. 725, 733–38 (1996); Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 Sup. Ct. Rev. 255, 255–57; Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 Colum. L. Rev. 1625 (1992); Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545, 550–54 (1990); Natsu Taylor Saito, The Enduring Effect of the Chinese Exclusion Cases: The “Plenary Power” Justification for On‑Going Abuses of Human Rights, 10 Asian L.J. 13 (2003); John A. Scanlan, Aliens in the Marketplace of Ideas: The Government, the Academy, and the McCarran‑Walter Act, 66 Tex. L. Rev. 1481, 1499–1504 (1988); Michael Scaperlanda, Polishing the Tarnished Golden Door, 1993 Wis. L. Rev. 965, 1022–31; Margaret H. Taylor, Detained Aliens Challenging Conditions of Confinement and the Porous Border of the Plenary Power Doctrine, 22 Hastings Const. L.Q. 1087, 1127–29 (1995). Some find that plenary power doctrine is waning. See, e.g., Peter H. Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1, 34–54 (1984); Peter J. Spiro, Explaining the End of Plenary Power, 16 Geo. Immigr. L.J. 339, 345–55 (2002). ↑
5. Doris Meissner et al., Immigration Enforcement in the United States: The Rise of a Formidable Machinery 23–46, 76–139 (2013); Adam Goodman, The Deportation Machine (2020); Daniel Tichenor, The Development of the U.S. Migration State: Nativism, Liberalism, and Durable Structures of Exclusion, in Neil Foley & James Hollifield, Understanding Global Migration 205 (2022). ↑
6. In recent decades, significant immigration reform efforts initiated by bipartisan coalitions in the U.S. House and Senate failed in 2006–2007 (despite strong support by the Bush Administration) and again in 2013–2014 (despite strong backing by the Obama Administration). See Daniel Tichenor, The Demise of Immigration Reform: Policy-Making Barriers under Unified and Divided Government, in Congress and Policymaking in the 21st Century 242 (Jeffrey Jenkins & Eric Pataschnik eds., 2016); Daniel Tichenor, Populists, Clients, and U.S. Immigration Wars, 53 Polity 418 (2021). ↑
7. On the campaign trail in 2024, former Presidential candidate and Republican Donald Trump said that “our country is under invasion, just like an army . . . . When I return to the White House I will launch a special task force of elite federal law enforcement and charge them with eliminating every foreign gang and organized crime network that is conquering our country . . . I’m angry about Venezuelan gangs taking over Aurora, Colorado, and I’m angry about Haitian migrants taking over Springfield, Ohio.” See Trump in Las Vegas: ‘Our Country Is Under Invasion’, KRCR TV News (Sep. 13, 2024, at 7:25 AM), https://krcrtv.com/news/nation-world/donald-trump-hosts-first-campaign-rally-in-las-vegas-post-debate-nevada-politics-election-presidential-race-gop-republican-jd-vance-kamala-harris-tim-walz-democrat [https://perma.cc/FSU9-MFP5]; see also Joel Rose, Talk of ‘Invasion’ Moves from the Fringe to the Mainstream of GOP Immigration Message, NPR (Aug. 3, 2022, at 5:10 AM), https://www.npr.org/2022/08/03/1115175247/talk-of-invasion-moves-from-the-fringe-to-the-mainstream-of-gop-immigration-mess [https://perma.cc/7NZL-JCXE]. In his 2025 inaugural address, President Trump vowed to “send troops to the southern border to repel the disastrous invasion of our country . . . [because] as commander in chief I have no higher responsibility than to defend our country from threats and invasions.” See William Banks, What Just Happened: The Framing of a Migration “Invasion” and the Use of Military Authorities, Just Sec. (Jan. 29, 2025), https://www.justsecurity.org/107030/invasion-executive-order-military-authorities [https://perma.cc/DKX2-FAVQ]. On March 15, 2025, the Trump Administration invoked the Alien Enemies Act, declaring that the Venezuelan Tren de Aragua gang was “undertaking hostile action 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.” Proclamation No. 10903, 50 Fed. Reg. 13033 (Mar. 14, 2025). The Trump Administration said that gang members who are Venezuelan nationals, ages fourteen and older, and in the United States without a green card or U.S. citizenship can be deported “as Alien Enemies.” Id. ↑
8. Alien Enemies Act of 1798, 50 U.S.C. §§ 21–24. ↑
9. Immigration and Nationality Act, Pub. L. No. 82‑414, 66 Stat. 163 (1952) (codified as amended in scattered sections of 8 U.S.C.). ↑
10. See John Miller, Crisis in Freedom: The Alien and Sedition Acts 51– 59 (1951); David Cole, Enemy Aliens 91–93 (2003); Daniel Tichenor, Trump is Using the Alien Enemies Act to Deport Immigrants, But the 18th Century Law Has Been Invoked Only in Times of War, The Conversation (Mar. 17, 2025, at 5:31 PM), https://theconversation.com/trump-is-using-the-alien-enemies-act-to-deport-immigrants-but-the-18th-century-law-has-been-invoked-only-during-times-of-war-252434 [https://perma.cc/7XYR-D39N]; Nicole Narea, The Ugly History Behind the Obscure Law Trump is Using for Mass Deportations, Vox (Mar. 18, 2025, at 4:45 AM), https://www.vox.com/politics/404745/alien-enemies-act-trump-venezuela-history-world-war [https://perma.cc/LX69-VLSR]. ↑
11. For example, the Trump Administration issued the following proclamation on March 15, 2025: “Tren de Aragua (TdA) is a designated Foreign Terrorist Organization with thousands of members, many of whom have unlawfully infiltrated the United States and are conducting irregular warfare and undertaking hostile actions against the United States. TdA operates in conjunction with Cártel de los Soles, the Nicolas Maduro regime‑sponsored, narco‑terrorism enterprise based in Venezuela, and commits brutal crimes, including murders, kidnappings, extortions, and human, drug, and weapons trafficking. TdA has engaged in and continues to engage in mass illegal migration to the United States to further its objectives of harming United States citizens, undermining public safety, and supporting the Maduro regime’s goal of destabilizing democratic nations in the Americas, including the United States. . . . Nicolas Maduro, who claims to act as Venezuela’s President and asserts control over the security forces and other authorities in Venezuela, also maintains close ties to regime‑sponsored narco‑terrorists. Maduro leads the regime‑sponsored enterprise Cártel de los Soles, which coordinates with and relies on TdA and other organizations to carry out its objective of using illegal narcotics as a weapon to ‘flood’ the United States. In 2020, Maduro and other regime members were charged with narcoterrorism and other crimes in connection with this plot against America.” Proclamation No. 10903, 90 Fed. Reg. 13033 (Mar. 14, 2025). ↑
12. John Higham, American Immigration in Historical Perspective, 21 Law & Contemp. Probs. 213 (1956); Robert Divine, American Immigration Policy, 1924–1954, at 181–97 (1st ed. 1972); Tichenor, supra note 2, at 176–203. ↑
13. The June 2025 order places a full ban on twelve countries: Afghanistan, Chad, Republic of the Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Myanmar, Somalia, Sudan, Yemen. Seven additional countries are under a partial ban: Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, Venezuela. See Proclamation No. 10949, 90 Fed. Reg. 24497 (June 4, 2025). ↑
14. See sources cited supra note 7. ↑
15. Louis Fisher, Presidential War Power (3rd ed. 2013); Jack Goldsmith, The Terror Presidency (1st ed. 2007); Daniel J. Tichenor, Historical Set Points and the Development of U.S. Presidential Emergency Power, 11 Persp. on Pol. 769 (2013). ↑
16. See Proclamation No. 10903, 90 Fed. Reg. at 13033. ↑
17. Korematsu v. United States, 323 U.S. 214, 246 (1944) (Jackson, J., dissenting). ↑
18. Sidney Milkis & Michael Nelson, The American Presidency: Origins and Development, 1776–2002, at 25 (4th ed. 2003); see also Richard Ellis, The Development of the American Presidency 4 (2012); Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 74–93 (1996); Charles Thach, The Creation of the American Presidency, 1775– 1779 (1969); Calvin Jillson, Constitution Making: Conflict and Consensus in the Federal Convention of 1787, at 42–49 (1988); Founding the American Presidency (Richard Ellis ed., 1999). ↑
19. Letter from James Madison to George Washington (Apr. 16, 1787), reprinted in 9 The Papers of James Madison 385 (Robert Rutland & William Rachal eds., 1975). ↑
20. The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787 (Jonathan Elliot ed., 2d ed. 1888), http://press-pubs.uchicago.edu/founders/documents/a2_1_1s16.html [https://perma.cc/S3QU-L8AV]. ↑
21. The Federalist No. 67, at 407 (Alexander Hamilton) (Clinton Rossiter ed., 1961). ↑
22. U.S. Const. art. II, § 1. ↑
23. U.S. Const. art. I, § 1 (emphasis added). ↑
24. Richard Pious, The American Presidency 29 (1979). ↑
25. John Yoo, Memorandum Opinion on the President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them, Teaching American History (Sep. 25, 2001), https://teachingamericanhistory.org/document/memorandum-on-the-presidents-constitutional-authority-to-conduct-military-operations-against-terrorists-and-nations-supporting-them [https://perma.cc/JS82-PKSG]; see also John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 (2006). ↑
26. Yoo, supra note 25; see also ELLIS, supra note 18, at 6. ↑
27. U.S. Const. art. II, § 3. ↑
28. William Howell, An American Presidency: Institutional Foundations of Executive Politics 34–38 (2017). ↑
29. Id. at 44. ↑
30. Cato, Cato IV, Teaching Am. Hist., https://teachingamericanhistory.org/document/cato-iv [https://perma.cc/8DFG-DHYB] (excerpting The New York Journal article from January 3, 1788). ↑
31. The Federalist No. 67, supra note 21, at 416–22. ↑
32. Id. at 423–25. ↑
33. Id. at 424. ↑
34. James Madison, Letters of Helvidius: Written in Reply to Pacificus, on the President’s Proclamation of Neutrality 5–14 (1793). ↑
35. Id. at 7. ↑
36. Theodore Roosevelt, An Autobiography 388–89 (1913). ↑
37. Id. ↑
38. William Howard Taft, Our Chief Magistrate and His Powers 140–44 (1916). ↑
39. Id. ↑
40. Jeffrey Tulis, The Rhetorical Presidency 173, 221–22 (1987). ↑
41. Theodore Lowi, The Personal President: Power Invested, Promise Unfulfilled 22 (1985). ↑
42. Arthur M. Schlesinger, Jr., The Imperial Presidency xii–x (1973). ↑
43. Pious, supra note 24, at 333. ↑
44. Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 Sup. Ct. Rev. 255, 282 (1984). ↑
45. Chae Chan Ping v. United States, 130 U.S. 581, 609 (1889) (“The power of the . . . government to exclude aliens from the United States is an incident of sovereignty, which cannot be surrendered. . . .”). ↑
46. David S. Rubenstein & Pratheepan Gulasekaram, Immigration Exceptionalism, 111 Nw. Univ. L. Rev. 583, 585 n.6 (2017). ↑
47. David A. Martin, Why Immigration’s Plenary Power Doctrine Endures, 68 Okla. L. Rev. 29, 30 (2015). ↑
48. Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320 (1909)). ↑
49. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 638 (1952); see also Motomura, supra note 4, at 581. ↑
50. Shalini Bhargava Ray, Plenary Power and Animus in Immigration Law, 80 Ohio St. L.J. 13 (2019); Rubenstein & Gulasekaram, supra note 46, at 585 n.6. ↑
51. Chae Chan Ping v. United States, 130 U.S. 581, 597–99 (1899). ↑
52. Shawn E. Fields, The Unreviewable Executive? National Security and the Limits of Plenary Power, 84 Tenn. L.J. 731, 740–41 (2017). ↑
53. Chae Chan Ping, 130 U.S at 603–04. ↑
54. Id. at 606. ↑
55. Id. at 609. ↑
56. Id. ↑
57. Martin, supra note 47, at 41. ↑
58. Fields, supra note 52, at 739. ↑
59. Legomsky, supra note 44, at 255. ↑
60. Adam Cox, The Invention of Immigration Exceptionalism, 134 Yale L.J. 329, 334 (2024). ↑
61. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950); see also Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons from the Lives of Ellen Knauff and Ignatz Mezei, 143 U. PA. L. REV. 933, 945–58 (1995). ↑
62. Shaughnessy v. United States ex rel. Mezei 345 U.S. 206 (1953). ↑
63. See Harisiades v. Shaughnessy, 342 U.S. 580 (1952). ↑
64. Id. at 587–88. ↑
65. Kleindienst v. Mandel, 408 U.S. 753, 760 (1972). ↑
66. Id. at 772. ↑
67. Kerry v. Din, 135 U.S. 86 (2015). ↑
68. Id. at 95. ↑
69. Id. at 97. ↑
70. Id. at 100. ↑
71. Id. at 103. ↑
72. Zadvydas v. Davis, 533 U.S. 678 (2001). ↑
73. Id. at 684–85. ↑
74. Id. ↑
75. Id. at 697. ↑
76. Id. at 701. ↑
77. See, e.g., sources cited supra note 2. ↑
78. See Goodman, supra note 5; Tichenor, supra note 5. ↑
79. See Goodman, supra note 5; Tichenor, supra note 5. ↑
80. See Jonathan Xavier Inda, Targeting Immigrants: Government, Technology, and Ethics (2006); Elena Baylis & David Zaring, Sending the Bureaucracy to War, 92 Iowa L. Rev. 1359 (2007). ↑
81. The U.S. Customs and Border Protection (CBP) was established in 2003 within the Department of Homeland Security, bringing together various border security and immigration functions that were once divided between CBP under one agency. Vivian C. Jones & Marc R. Rosenblum, Cong. Rsch. Serv., R43014, U.S. Customs and Border Protection: Trade Facilitation, Enforcement, and Security (2013). U.S. Immigration and Customs Enforcement, created under the Homeland Security Act of 2002, has three major operational sections: (1) the Homeland Security Investigations that targets transnational criminal organizations, such as drug cartels; (2) Enforcement and Removal Operations which spearheads the arrest, detention, and supervised release or deportation of undocumented immigrants; and (3) the Office of the Principal Legal Advisor (OPLA) that coordinates legal support for ICE operations, such as litigation of detention and deportation cases. Mythili Sampathkumar, Inside ICE (2019); Felicia Arriaga, Behind Crimmigration: ICE, Law Enforcement and Resistance in America (2023). The Entry/Exit System, run by the Department of Homeland Security, monitors the entry and exit of people and goods into the United States, using biometric data, travel history and other technology to screen admission at national ports of entry. See Steven MacMartan et al., The History and Evolution of Homeland Security in the United States: From the Constitution Through 9/11 to the Present (2025). ↑
82. See Meissner et al., supra note 5; Nancy Hiemstra, Detain and Deport: The Chaotic U.S. Immigration Enforcement Regime (2019); Shoba Sivaprasad Wadhia, Banned: Immigration Enforcement in the Time of Trump (2021); Nancy Hiemstra & Dierdra Conlon, Immigration Detention Inc.: The Big Business of Locking up Migrants (2025). ↑
83. One Big Beautiful Bill Act, Pub. L. 119–21, 139 Stat. 72 (2025); Zolan Kanno‑Youngs & Hamed Aleaziz, ICE Set to Vastly Expand Its Reach with New Funds, N.Y. Times (July 12, 2025), https://www.nytimes.com/2025/07/12/us/politics/ice-expansion-concerns.html [https://perma.cc/5CCV-PPRL]. ↑
84. See Goodman, supra note 5; Tichenor, supra note 5. ↑
85. See Cole, supra note 10. ↑
86. Id. ↑
87. MacMartan et al., supra note 81. ↑
88. Id. ↑
89. Goodman, supra note 5, at 180. ↑
90. Id. ↑
91. Meissner et al, supra note 5, at 10, 15. ↑
92. Id. at 14, 15. ↑
93. Id. ↑
94. See Goodman, supra note 5; Deepa Fernandes, Targeted: Homeland Security and the Business of Immigration (2007); MacMartan et al., supra note 81. ↑
95. Tichenor, supra note 5. ↑
96. Tichenor, supra note 2, at 46–86. ↑
97. Twentieth century presidents who collaborated with or deferred to Congress on immigration policy include Warren Harding, Calvin Coolidge, Herbert Hoover, Franklin Roosevelt, Richard Nixon, Gerald Ford, Ronald Reagan, and George H.W. Bush. See John Higham, Strangers in the Land (1952). ↑
98. Twentieth century presidents who were frustrated in their efforts to overcome congressional resistance to their immigration policy agendas include Theodore Roosevelt, Woodrow Wilson, Harry Truman, Dwight Eisenhower, John Kennedy, and Jimmy Carter. See Tichenor, supra note 2. ↑
99. Lyndon Johnson and Bill Clinton negotiated with Congress and secured major immigration reform after painful compromises. Id. ↑
100. See generally Neuman, supra note 2; Pratheepan Gulasekaram & S. Karthick Ramakrishnan, The New Immigration Federalism (2015); Anna Law, The Origins of American Citizenship and Migration (2026); Matthew J. Lindsay, Immigration as Invasion: Sovereignty, Security, and the Origins of the Federal Immigration Power, 45 Harv. C.R.‑C.L. L. Rev. 1 (2010); Matthew Lindsay, Preserving the Exceptional Republic: Political Economy, Race, and the Federalization of American Immigration Law, 17 Yale J.L. & Human. 181, 182–86 (2005). ↑
101. Henderson v. Mayor of N.Y., 92 U.S. 259, 273 (1875). ↑
102. Id. ↑
103. An Act to Regulate Immigration, ch. 376, § 2, 22 Stat. 214 (1882). ↑
104. See E.P. Hutchinson, Legislative History of Immigration Policy 79– 80, 396–404 (1981). ↑
105. During the Civil War, for example, Abraham Lincoln and his Administration saw immigrants as a national asset and used executive resources to recruit new European immigration. Lincoln ultimately left the lion’s share of immigration governance to Congress and the states, but he urged legislators to encourage immigration in the 1860s. See Henry Holzer, Brought Forth on This Continent: Abraham Lincoln and American Immigration (2024). ↑
106. Adam Cox & Cristina Rodriguez, The President and Immigration Law 5, 24 (2020). ↑
107. See Sidney Milkis & Daniel Tichenor, Rivalry and Reform: Presidents, Social Movements, and the Transformation of American Politics (2019); Stephen Skowronek, The Politics Presidents Make (1997); Richard Neustadt, Presidential Power: The Politics of Leadership (1960); Tulis, supra note 40; Sidney Milkis, The President and the Parties (1993). ↑
108. See Higham, supra note 97; Carol Chin & Hans Krabbendam, “True Americanism”: The Role of Race and Class in Theodore Roosevelt’s Immigration Policy and Its Effect on US‑European Relations, in America’s Transatlantic Turn: The World of the Roosevelts 66, 66–79 (Hans Krabbendam & John M. Thompson eds., 2012). ↑
109. Higham, supra note 97, at 202–04. ↑
110. See David Wyman, Paper Walls: America and the Refugee Crisis, 1938–1941, at 67–71 (1968); David Wyman, The Abandonment of the Jews 6–14 (2007). ↑
111. Tichenor, supra note 2, at 186–218; Divine, supra note 12, at 173–89. Truman and Eisenhower were frustrated by powerful immigration restrictionists who controlled the immigration subcommittees in the House and Senate and who successfully championed immigration legislation that sustained racist national origin quotas and other draconian bars on immigrant admissions. ↑
112. See Jia Lynn Yang, One Mighty and Irresistible Tide: The Epic Struggle Over American Immigration, 1924–1965, at 230–60 (2020); Tichenor, supra note 2, at 218, 261. ↑
113. See Tichenor, supra note 2; Daniel Tichenor, Lyndon Johnson’s Ambivalent Reform: The Immigration and Nationality Act of 1965, 46 Presidential Stud. Q. 691, 704 (2016); Gimpel & Edwards, Jr., supra note 2. ↑
114. Prominent examples of major immigration reform efforts that failed include the Bush‑Kennedy‑McCain plans of 2005–2006 and the bipartisan Senate proposals of 2009–2014. See Tichenor, supra note 5, at 242–71; Stephen Dinan, House Shuns Illegals Proposal, Wash. Times (Nov. 11, 2004), https://www.washingtontimes.com/news/2004/nov/11/20041111-015302-4749r [https://perma.cc/5E7K-4GPB]; Tom McCarthy, The Evolution of Immigration Reform Under Obama – A Timeline, Guardian (Nov. 20, 2014), https://www.theguardian.com/us-news/2014/nov/20/immigration-reform-under-obama-timeline [https://perma.cc/5ECJ-3SSL]. ↑
115. See generally Daniel Schlozman & Sam Rosenfeld, The Hollow Parties: The Many Pasts and Disordered Present of American Party Politics, in Can America Govern Itself? 120 (2019). ↑
116. See Milkis & Tichenor, supra note 107; Sidney Tarrow, Movements and Parties: Critical Connections in American Political Development (2021). ↑
117. Levitsky & Ziblatt, How Democracies Die 33–52 (2018). ↑
118. Neil O’Brien, The Roots of Polarization: From the Racial Realignment to the Culture Wars 138–67 (2024); Joseph O. Baker & Amy E. Edmonds, Immigration, Presidential Politics, and Partisan Polarization Among the American Public, 1992–2018, 41 Socio. Spectrum 287, 287–303 (2021); Trent Ollerenshaw & Ashley Jardina, The Asymmetric Polarization of Immigration Opinion in the United States, 87 Pub. Op. Q. 1038 (2023); Tichenor, supra note 6, at 420. ↑
119. See sources cited supra note 118. ↑
120. Higham, supra note 97; Tichenor, supra note 2. ↑
121. See Milkis & Tichenor, supra note 107, at 279–317. ↑
122. Id. ↑
123. Daniel Tichenor, The Quest for Elusive Reform: Undocumented Immigrants in a Polarized Nation 3–25 (2021). ↑
124. Id. ↑
125. O’Brien, supra note 118, at 138–67; Tichenor, supra note 118, at 370–88. ↑
126. Tichenor, supra note 123, at 3–25. ↑
127. See Milkis & Tichenor, supra note 107, at 279–317. ↑
128. Peter Slevin, Deportation of Illegal Immigrants Increases Under the Obama Administration, Wash. Post (July 26, 2010), https://www.washingtonpost.com/archive/national/2010/07/26/record-numbers-being-deported/58f057a6-2da1-4464-a785-9b791ebb505b [https://perma.cc/ZB79-4KG5]. ↑
129. The DREAMer movement is a political advocacy campaign to secure a pathway to citizenship for undocumented immigrants who came to the United States as children. It traces its origins to efforts by immigrant rights activists in the early 2000s to pass legislation that extended legal permanent residency to undocumented persons who arrived in the United States as minors and completed education requirements or military service. This legislation was titled the “Development, Relief, and Education for Alien Minors Act,” or the “DREAM Act.” Young undocumented people rallying for this reform formed a vibrant new DREAMer movement that successfully won DACA relief from the Obama Administration and continues to advocate for immigrant rights. See William Nicholls, The DREAMers (2013); Milkis & Tichenor, supra note 107, at 293–305; Alison Gash & Daniel Tichenor, Democracy’s Child: Young People and the Politics of Control, Leverage, and Agency 138–40, 151–54 (2022). ↑
130. See The Obama Administration’s DAPA and Expanded DACA Programs, Nat’l Immigr. L. Ctr. (Mar. 2, 2015), https://www.nilc.org/issues/immigration-re-form-and-executive-actions/dapa-and-expanded-daca-programs [https://perma.cc/ED63-RPA6]. See generally Gash & Tichenor, supra note 129. ↑
131. Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015), aff’d, 809 F.3d 134 (5th Cir. 2015), aff’d, 579 U.S. 547 (2016). ↑
132. Milkis & Tichenor, supra note 107, at 306; see also Readout of the President’s Meeting with Immigration Advocacy Leaders, Am. Presidency Project (Feb. 25, 2015), http://www.presidency.ucsb.edu/ws/index.php?pid=109670 [https://perma.cc/D5H5-PE9K]. ↑
133. Exec. Order No. 13,767, 82 Fed. Reg. 8793 (Jan. 25, 2017). ↑
134. Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Feb. 1, 2017). ↑
135. Id. ↑
136. Exec. Order No. 13,767, 82 Fed. Reg. 8793 (Jan. 25, 2017). ↑
137. Tichenor, supra note 5, at 205, 230–32. ↑
138. See Milkis & Tichenor, supra note 107, at 279–317. ↑
139. Id. ↑
140. The Trump Administration’s invocation of the Alien Enemies Act, discussed at length in Part III of this Article, is a significant example. See Daniel Tichenor, Trump Wants to Use the Alien Enemies Act to Deport Immigrants – but the 18th‑Century Law Has Been Invoked Only During Times of War, The Conversation (Dec. 11, 2024, at 8:41 AM), https://theconversation.com/trump-wants-to-use-the-alien-enemies-act-to-deport-immigrants-but-the-18th-century-law-has-been-invoked-only-during-times-of-war-243663 [https://perma.cc/4SAE-LZ4P]. ↑
141. Clement Fatovic, Constitutionalism and Contingency: Locke’s Theory of Prerogative, 25 Hist. Pol. Thought 276, 276–97 (2004); Brigid Hadfield, Judicial Review and the Prerogative Powers of the Crown, in The Nature of the Crown 196, 196– 232 (Maurice Sunkin & Sebastian Payne eds., 1999); Rosara Joseph, The War Prerogative: History, Reform, and Constitutional Design (2013); Julian Davis Mortenson, A Theory of Republican Prerogative, 88 S. Cal. L. Rev. 45, 66–96 (2014); Richard M. Pious, Prerogative Power and Presidential Politics, in The Oxford Handbook of the American Presidency 455, 455–76 (George C. Edwards & William G. Howell eds., 2009). ↑
142. John Locke, Second Treatise of Government 90–93 (C.B. McPherson ed., 1980) (1690); see Thomas Langston & Michael Lind, John Locke & the Limits of Presidential Prerogative, 24 Polity 49, 49–68 (1991). ↑
143. Locke, supra note 142, at 90. ↑
144. Larry Arnhardt, “The God-Like Prince”: John Locke, Executive Prerogative, and the American Presidency, 9 Presidential Stud. Q. 121, 124 (1979). ↑
145. The Federalist No. 70 (Alexander Hamilton) (Clinton Rossiter ed., 1961). ↑
146. Tichenor, supra note 15; Justin DePlato, American Presidential Power and the War on Terror: Does the Constitution Matter? (2015). ↑
147. Tichenor, supra note 15, at 771–78; Mark J. Rozell, Executive Privilege: The Dilemma of Secrecy and Democratic Accountability (1994). ↑
148. Letter from Thomas Jefferson to John Breckinridge (Aug. 12, 1803), in 41 The Papers of Thomas Jefferson 186 (Barbara B. Oberg ed., 2014). ↑
149. Letter from Thomas Jefferson to John B. Colvin (Sep. 20, 1810), in 11 The Works of Thomas Jefferson 146 (Paul Leicester Ford ed., 1905). ↑
150. Id. ↑
151. Letter from Thomas Jefferson to John Breckinridge, supra note 148, at 184–86; Letter from Thomas Jefferson to John B. Colvin, supra note 149, at 146– 49. ↑
152. See, e.g., Daniel A. Farber, Essay, Lincoln, Presidential Power, and the Rule of Law, 113 Nw. U. L. Rev. 667, 672–75 (2018); Milkis & Nelson, supra note 1, at 171–78; James G. Randall, Constitutional Problems Under Lincoln (rev. ed. 1951). ↑
153. Abraham Lincoln, Special Session Message (July 4, 1861). ↑
154. Benjamin Kleinerman, The Discretionary President 148–64 (2009). ↑
155. Abraham Lincoln, Special Session Message (July 4, 1861). ↑
156. 6 John Nicolay & John Hay, Complete Works of Abraham Lincoln 308 (1905). ↑
157. Tichenor, supra note 15, at 773–74. ↑
158. The Prize Cases, 67 U.S. (2 Black) 635 (1863). ↑
159. Tichenor, supra note 15, at 773. ↑
160. Kleinerman, supra note 154, at 148–64. ↑
161. Ex parte Milligan, 71 U.S. 2, 4 (1866). ↑
162. Tichenor, supra note 15, at 776. ↑
163. Id. ↑
164. Tichenor, supra note 15, at 776–82. ↑
165. Ex parte Quirin, 317 U.S. 1 (1942); see Louis Fisher, Nazi Saboteurs on Trial (2003). ↑
166. Korematsu v. United States, 323 U.S. 214 (1944). ↑
167. Rasul v. Bush, 542 U.S. 466 (2004). ↑
168. Hamdi v. Rumsfeld, 542 U.S. 507 (2004). ↑
169. Hamdan v. Rumsfeld, 548 U.S. 557 (2006). ↑
170. John Yoo, Crisis and Command 202 (2009). ↑
171. Id. ↑
172. See generally Roger Daniels, Prisoners Without Trial: Japanese Americans in World War II (rev. ed. 2004); Greg Robinson, By Order of the President: FDR and the Internment of Japanese Americans (2001); Brian Masaru Hayashi, Democratizing the Enemy: The Japanese American Internment (2004); Wendy Ng, Japanese American Internment During World War II: A History and Reference Guide (2001); Stephen S. Fugita & Marilyn Fernandez, Altered Lives, Enduring Community: Japanese Americans Remember Their World War II Incarceration (2004). ↑
173. Francis Biddle, In Brief Authority 219 (1962). ↑
174. Eugene V. Rostow, The Japanese American Cases—A Disaster, 54 Yale L.J. 489, 532 (1945). ↑
175. Id. ↑
176. Korematsu v. United States, 323 U.S. 214, 246 (1944). ↑
177. See, e.g., Joseph McCarthy, Enemies from Within (Feb. 9, 1950), https://historymatters.gmu.edu/d/6456 [https://perma.cc/UES3-HH5F]; Trump Defends Use of the U.S. Military Against the ‘Enemy Within’, NPR (Sep. 30, 2025), https://www.npr.org/2025/09/30/nx-s1-5557232/hegseth-generals-trump [https://perma.cc/9F4X-YWBX]; Warren Cohen, The Enemies Within, L.A. Times, (Feb. 22, 2004), https://www.latimes.com/archives/la-xpm-2004-feb-22-bk-cohen22-story.html [https://perma.cc/36R8-PKAR]; Cole, supra note 10. ↑
178. See, e.g., William G. Howell, Power Without Persuasion: The Politics of Direct Presidential Action (2003); Terry M. Moe & William G. Howell, Unilateral Action and Presidential Power: A Theory, 29 Presidential Stud. Q. 850 (1999). ↑
179. Richard E. Neustadt, Presidential Power: The Politics of Leadership 179 (1960). Neustadt explains in his theory of presidential leadership how occupants of the Oval Office are effective when they are able to mobilize the office’s bargaining capacities, professional reputation among other officials, and public support: “Effective influence for the man in the White House stems from three related sources: first are the bargaining advantages inherent in his job with which to persuade other men that what he wants of them is what their own responsibilities require them to do. Second are the expectations of those other men regarding his ability and will to use the various advantages they think he has. Third are those men’s estimates of how his public views him and of how their publics may view them if they do what he wants. In short, his power is the product of his vantage points in government, together with his reputation in the Washington community and his prestige outside.” Id. ↑
180. See, e.g., Howell, supra note 178; Moe & Howell, supra note 178. ↑
181. Moe & Howell, supra note 178. ↑
182. Exec. Order No. 14,159, 90 Fed. Reg. 8443 (Jan. 20, 2025). ↑
183. See, e.g., Ted Hesson & Kristina Cooke, Inside Trump’s Plan for Mass Deportations—and Who Wants to Stop Him, Reuters (Nov. 10, 2024), https://www.reuters.com/world/us/inside-trumps-plan-mass-deportations-who-wants-stop-him-2024-11-06 [https://perma.cc/RQ9C-5AMF]. ↑
184. See, e.g., Katherine Yon Ebright, The Alien Enemies Act, Explained, Brennan Ctr. for Just. (May 1, 2025), https://www.brennancenter.org/our-work/research-reports/alien-enemies-act-explained [https://perma.cc/4SZZ-768W] (explaining how the AEA, when legally invoked, allows for summary deportation without a hearing on the basis of a noncitizen’s affiliation or origin with a designated foreign “hostile” entity). ↑
185. Republican Nat’l Comm. Platform Comm., 2024 GOP Platform: Make America Great Again! 8 (2024), https://rncplatform.donaldjtrump.com [https://perma.cc/4BKP-C9XP] (“Republicans will strengthen ICE, increase penalties for illegal entry and overstaying Visas, and reinstate ‘Remain in Mexico’ and other Policies that helped reduce Illegal Immigration by historic lows in President Trump’s first term. We will also invoke the Alien Enemies Act to remove all known or suspected gang members, drug dealers, or cartel members from the United States, ending the scourge of Illegal Alien gang violence once and for all.” (emphasis added)). ↑
186. See Miller, supra note 10, at 160–81, 221–33 (1951); William J. Watkins, Jr., Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy (2004). ↑
187. The AEA was invoked in the War of 1812, the First World War, and the Second World War. See Tichenor, supra note 10. ↑
188. See generally James Morton Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties (1956); Miller, supra note 10; Dumas Malone, Jefferson and the Ordeal of Liberty 380–424 (1962); Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (1996).  ↑
189. Miller, supra note 10, at 40–50. ↑
190. Alien Enemies Act of 1798, 50 U.S.C. § 21. The Act states: “Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.” Id. ↑
191. Id. ↑
192. Id. ↑
193. Id. ↑
194. Miller, supra note 10, at 160–81. ↑
195. John Adams never directly invoked the powers granted to him under the Alien Enemies Act, but he did at the urging of his Secretary of State Thomas Pickering sign warrants for the arrest of a handful of foreign‑born residents who were outspoken in their criticism of the federal government. Each of these noncitizens evaded arrest or left the country voluntarily. See Smith, supra note 188, at 159– 76. For a useful account of Adams’s ambivalent role in the passage and implementation of the Alien and Sedition Acts, see Ralph Brown, The Presidency of John Adams 122–27 (1975). ↑
196. See generally Milkis & Nelson, supra note 1, at 90–92, 96–101; John Ferling, Adams vs. Jefferson: The Tumultuous Election of 1800 (2004); Richard Buel, Securing the Revolution: Ideology in American Politics, 1789–1815 (1972); William Nisbet Chambers, Political Parties in a New Nation: The American Experience, 1776–1809 (1963). ↑
197. The Sedition Act, ch. 74, 1 Stat. 596 (1798) (expired 1801), and the Alien Act (or Alien Friends Act), ch. 58, 1 Stat. 570 (1798) (expired 1800), were by their terms temporary and expired on March 3, 1801, and June 25, 1800, respectively. ↑
198. The Naturalization Act of 1798, ch. 54, 1 Stat. 566 (repealed 1802), extended the period of residence required before naturalization to fourteen years; it reflected the tendency of immigrants in the 1790s to become Jeffersonian Republicans, and was repealed by the Naturalization Law of 1802, ch. 28, 2 Stat. 153. See Smith, supra note 188, at 23–25. ↑
199. Alien Enemies Act, ch. 66, 1 Stat. 577 (1798) (still in force). ↑
200. Ludecke v. Watkins, 335 U.S. 160, 171–72 n.18 (1948). In his notes for the Virginia Resolutions, Madison noted: “The next observation to be made is, that much confusion and fallacy have been thrown into the question by blending the two cases of aliens, members of a hostile nation, and aliens, members of friendly nations. . . . With respect to alien enemies, no doubt has been intimated as to the Federal authority over them; the Constitution having expressly delegated to Congress the power to declare war against any nation, and, of course, to treat it and all its members as enemies.” James Madison, Report on the Resolutions (1799– 1800), reprinted in Comprising His Public Papers and His Private Correspondence, Including Numerous Letters and Documents Now for the First Time Printed 360–61 (Gaillard Hunt, ed., 1900–1910) (emphasis omitted). Similarly, Thomas Jefferson, the author of the Kentucky Resolutions of 1798 and 1799, was careful to point out that the Alien Act under attack was the one “which assumes powers over alien friends.” Thomas Jefferson, Drafts of the Kentucky Resolutions of 1798 (1798), reprinted in The Writings of Thomas Jefferson 7, 296 (Paul Leicester Ford, ed., 1892–99). ↑
201. Madison, supra note 200, at 366. ↑
202. Katherin Yon Ebright, The Alien Enemies Act 5 (2024), https://www.brennancenter.org/media/13434/download/2024_09_alien_enemies_act_report_final_0.pdf [https://perma.cc/6VB4-USF3]. ↑
203. Id. ↑
204. See generally Donald Hickey, The War of 1812: A Forgotten Conflict (1989); Walter Borneman, 1812: The War That Forged a Nation (2004); Alan Taylor, The Civil War of 1812: American Citizens, British Subjects, Irish Rebels, & Indian Allies (2010). ↑
205. Circular from Jas. [James] Monroe, Dep’t of State, to the Sec’y of the Miss. Territory (July 11, 1812) (on file with the Miss. Dep’t of Archives and Hist.) (transmitting “enemy aliens” acts, giving instructions about how to carry such laws into effect). ↑
206. Tichenor, supra note 10. ↑
207. Monroe, supra note 205. ↑
208. Lockington v. Smith, 15 F.Cas. 758, 760 (Cir. Ct. Dist. Pa. 1817). ↑
209. Ebright, supra note 202, at 5; Tichenor, supra note 10. ↑
210. Proclamation No. 1364, 40 Stat. 1650 (Apr. 6, 1917), reprinted in Annual Report of the Attorney General of the United States For The Year 1917 57, 58 (Dep’t of Just. ed., 1917), https://babel.hathitrust.org/cgi/pt?id=uc1.b5145525&seq=62 [https://perma.cc/US93-Q9DB] (declaring that a state of war exists between the United States and Germany). ↑
211. Wilson’s proclamation specifically barred enemy aliens from possessing items deemed to be potentially threatening to national security via sabotage or espionage. In particular, the proclamation noted that “[a]n alien enemy shall not have in his possession, at any time or place, any firearm, weapon, or implement of war . . . . An alien enemy shall not have in his possession at any time or place, or use or operate any aircraft or wireless apparatus, or any form of signaling device, or any form of cipher code.” Id. at 57–58, 67, 89. ↑
212. Joan M. Jensen, The Price of Vigilance, 56 J. Am. Hist. 701 (1969); Bill Mills, The League: The True Story of Average Americans on the Hunt for WWI Spies (2013); Emerson Hough, The Web (1919). ↑
213. Proclamation No. 1364, supra note 210. ↑
214. Arnold Krammer, Undue Process: The Untold Story of American’s German Alien Internees (Rowman & Littlefield ed., 1st ed. 1997); Germans Interned at Georgia Forts; “We Will Give No Pledges,” Says Captain, Who, with Men, Salutes the Flag, N.Y. Times (Mar. 28, 1917), https://www.nytimes.com/1917/03/28/archives/germans-interned-at-georgia-forts-we-will-give-no-pledges-says.html [https://perma.cc/LA38-SH2K]; Jörg Nagler, Victims of the Home Front: Enemy Aliens in the United States during World War I, in Minorities in Wartime 191 (Panikos Panayi ed., 1993). ↑
215. See Proclamation No. 2525, 6 Fed. Reg. 6321, 55 Stat. 1700 (Dec. 7, 1941) (Alien Enemies, Japanese); Proclamation No. 2526, 6 Fed. Reg. 6323, 55 Stat. 1705 (Dec. 8, 1941) (Alien Enemies, German); Proclamation No. 2527, 6 Fed. Reg. 6324, 55 Stat. 1707 (Dec. 8, 1941) (Alien Enemies, Italian). ↑
216. See sources cited supra note 215. For comparative analysis, see Tichenor, supra note 10. ↑
217. See sources cited supra note 215. ↑
218. See generally Paula Branca‑Santos, Injustice Ignored: The Internment of Italian ‑ Americans During World War II, 13 Pace Int’l L. Rev. 151 (2001); Krammer, supra note 214; Stephen Fox, The Unknown Internment: An Oral History of the Relocation of Italian Americans During World War II (1990); John Christgau, Enemies: World War II Alien Internment (2009); James L. Dickerson, Inside America’s Concentration Camps: Two Centuries of Internment and Torture (2010). ↑
219. See Tetsuden Kashima, Judgment Without Trial: Japanese American Imprisonment During World War II, at 124 (2003); Biddle, supra note 173, at 212–26. ↑
220. See sources cited supra note 218. ↑
221. See Exec. Order No. 9,066, 7 Fed. Reg. 1407 (Feb. 19, 1942) (“[B]y virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion. The Secretary of War is hereby authorized to provide for residents of any such area who are excluded therefrom, such transportation, food, shelter, and other accommodations as may be necessary, in the judgment of the Secretary of War or the said Military Commander, and until other arrangements are made, to accomplish the purpose of this order. The designation of military areas in any region or locality shall supersede designations of prohibited and restricted areas by the Attorney General under the Proclamations of December 7 and 8, 1941, and shall supersede the responsibility and authority of the Attorney General under the said Proclamations in respect of such prohibited and restricted areas.”). ↑
222. See generally Hirabayashi v. United States, 320 U.S. 81 (1943) (affirming the conviction of Gordon Hirabayashi for defying a curfew order for Japanese Americans on the West Coast, ruling it was a constitutional exercise of power during wartime); Yasui v. United States, 320 U.S. 115 (1943) (affirming the conviction of Minoru Yasui for violating a similar curfew order, ruling it a constitutional exercise of the government’s authority in wartime); Korematsu v. United States, 323 U.S. 214 (1944) (upholding executive and military orders that removed Japanese Americans from their homes and communities and placed them in internment camps). For secondary literature on Japanese removal and internment, see generally Robinson, supra note 172; Daniels, supra note 172; Fugita & Fernandez, supra note 172; Stephanie D. Hinnershitz, Japanese American Incarceration: The Camps and Coerced Labor During World War II (2021); Linda L. Ivey & Kevin W. Kaatz, Documents of Japanese American Internment (2020); Last Witnesses: Reflections on the Wartime Internment of Japanese Americans (Erica Harth ed., 2003); Richard Reeves, Infamy: The Shocking Story of the Japanese American Internment in World War II (2016); Tetsuden Kashima, Judgment Without Trial: Japanese American Imprisonment During World War II (2003). ↑
223. Korematsu, 323 U.S. at 216. ↑
224. Ludecke v. Watkins, 335 U.S. 160, 173 (1948). ↑
225. Arthur L. Smith, Kurt Lüdecke: The Man Who Knew Hitler, 26 German Stud. Rev. 597, 604 (2003); 1 Frank J. Mackey, Forward‑March! The Photographic Record of America in the World War and the Post War Social Upheaval 480–83 (1939) https://usgennet.org/usa/topic/preservation/dav2a/pg480.htm [https://perma.cc/2ELP-W44V]. ↑
226. Ludecke, 335 U.S. at 162–63, 170. ↑
227. See id. at 162–63, 166–170. ↑
228. Id. at 170. ↑
229. Id. at 170. ↑
230. Id. at 171–72, 172 n.16. ↑
231. Id. at 172. ↑
232. Id. at 173. ↑
233. Press Release, U.S. Dep’t of State, Designation of International Cartels (Feb. 20, 2025), https://www.state.gov/designation-of-international-cartels [https://perma.cc/3LEN-EHBU]. ↑
234. Proclamation No. 10903, 90 Fed. Reg. 13033 (Mar. 14, 2025). ↑
235. Id. at 13034. ↑
236. 50 U.S.C. § 21 (“Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.”). ↑
237. Proclamation No. 10903, 90 Fed. Reg. 13033 (Mar. 14, 2025). ↑
238. Id. ↑
239. Id. at 13034. ↑
240. J.G.G. v. Trump, 147 F.4th 1044, 1077–78 (D.C. Cir. 2025). ↑
241. Id. at 1044. ↑
242. Scott MacFarlane, Judge Blocks Trump from Using Wartime Alien Enemies Act of 1798 to Deport Immigrants, CBS (Mar. 17, 2025, at 10:04 AM), https://www.cbsnews.com/news/venezuelan-immigrants-sue-trump-over-order-invoking-wartime-alien-enemies-act-of-1798 [https://perma.cc/3KYD-LHHD]. ↑
243. Id. ↑
244. Edward Helmore & Tom Phillips, US Deports 250 Alleged Gang Members to El Salvador Despite Court Ruling to Halt Flights, Guardian (Mar. 16, 2025, at 1:10 PM), https://www.theguardian.com/us-news/2025/mar/16/deportation-alleged-gang-members-el-salvador [https://perma.cc/5ZH9-V2DH]. ↑
245. Armando Garci et al., ‘Many’ Alleged Gang Members Deported by Trump Didn’t Have Criminal Records in the US: ICE, ABC News (Mar. 18, 2025, at 2:00 PM), https://abcnews.go.com/US/noncitizens-deported-alien-enemies-act-criminal-records-ice/story?id=119912375 [https://perma.cc/5ZT3-BEK2]. ↑
246. J.G.G. v. Trump, 147 F.4th 1044 (D.C. Cir. 2025). ↑
247. Jacob Rosen, Appeals Court Judge Says Nazis Were Treated Better than Venezuelans, CBS News (Mar. 24, 2025), https://www.cbsnews.com/news/nazis-alien-enemies-act-deportations-appeals-court-judge [https://perma.cc/U5EX-KG87]. ↑
248. Trump v. J.G.G., 604 U.S. 670, 672 (2025); Amy Howe, Supreme Court Requires Noncitizens to Challenge Detention and Removal in Texas, SCOTUSblog (Apr. 8, 2025, at 12:00 AM), https://www.scotusblog.com/2025/04/supreme-court-requires-noncitizens-to-challenge-detention-and-removal-in-texas [https://perma.cc/7R6P-H3XC]; John Fritze & Devan Cole, Supreme Court Allows Trump to Enforce Alien Enemies Act for Rapid Deportations for Now, CNN (Apr. 7, 2025, at 8:51 PM), https://www.cnn.com/2025/04/07/politics/supreme-court-deportation-flights-trump [https://perma.cc/2YEJ-BTWQ]; Nina Totenberg, Supreme Court Temporarily Backs Trump in Controversial Deportations Case, NPR (June 17, 2025, at 3:19 PM), https://www.sdpb.org/2025-04-07/supreme-court-backs-trump-in-controversial-deportations-case [https://perma.cc/H763-6DAW]. ↑
249. Trump v. J.G.G., 604 U.S. at 672. ↑
250. W.M.M. v. Trump, 154 F.4th 207 (5th Cir. 2025), vacated, 154 F.4th 319 (5th Cir.). ↑
251. Id. at 210–11. ↑
252. Id. at 220. ↑
253. Id. at 222–23. ↑
254. Id. at 229. ↑
255. Alan Feuer, Full Federal Appeals Court to Hear Alien Enemies Act Case, N.Y. Times (Sep. 20, 2025), https://www.nytimes.com/2025/09/30/us/politics/appeals-court-alien-enemies-act.html [https://perma.cc/8F2Q-YKVF]. ↑
256. W.M.M., 154 F.4th at 237. ↑
257. Id. at 216. ↑
258. Ebright, supra note 202, at 14. ↑
259. Julia Rose Kraut, Threat of Dissent: A History of Ideological Exclusion and Deportation in the United States 152 (2020); Kate M. Manuel, Cong. Rsch. Serv., R44743, Executive Authority to Exclude Aliens: In Brief 1 (2017). ↑
260. See Kraut, supra note 259, at 242, 246. ↑
261. Tichenor, supra note 2, at 191–96; see also Ellis Cose, A Nation of Strangers, 82–93 (1992); Divine, supra note 12, at 177–194; ↑
262. Divine, supra note 12, at 177, 191; Luther Huston, President’s Board Favors Rewriting of Immigration Act, N.Y. Times (Jan. 2, 1953), https://www.nytimes.com/1953/01/02/archives/presidents-board-favors-rewriting-of-immigration-act-law-called.html [https://perma.cc/NW2K-WJ7K]. ↑
263. Veto of Bill to Revise the Laws Relating to Immigration, Naturalization, and Nationality, 1 Pub. Papers 441 (June 25, 1952); Comm’n on Immigr. and Naturalization, Whom We Shall Welcome (1953); Abba Schwartz, The Open Society 4 (1963) (describing President Kennedy’s desire for an open society); Tichenor, supra note at 2, at 198 (describing President Eisenhower’s disapproval of isolationism). ↑
264. Daniel Tichenor, A Law from the Era of Red Scares Is Supercharging Trump Administration’s Power Over Immigrants and Noncitizens, The Conversation (July 15, 2025, at 8:29 AM), https://theconversation.com/a-law-from-the-era-of-red-scares-is-supercharging-trump-administrations-power-over-immigrants-and-noncitizens-255307 [https://perma.cc/MFD8-LNZS]. ↑
265. Id.; Muzaffar Chishti & Colleen Putzel-Kavanaugh, Tapping Ancient Wartime and Security Laws, Trump Administration Dramatically Expands Immigration Powers, Migration Pol’y Inst. Pol’y Beat (March 21, 2025), https://www.migrationpolicy.org/article/trump-registration-alien-enemies-insurrection [https://perma.cc/AJE4-ABZZ]. ↑
266. Tichenor, supra note 264. ↑
267. Immigration and Nationality Act, 8 U.S.C. § 1227(a)(4)(C); Sita N. Slavov & Alan D. Viard, Trump Administration Uses Obscure Immigration Law to Threaten Campus Free Speech, AEI: AEIdeas (June 11, 2025), https://www.aei.org/economics/trump-administration-uses-obscure-immigration-law-to-threaten-campus-free-speech [https://perma.cc/94JD-6BPV]; see also Brief of Over 150 Immigr. Lawyers, Law Profs., & Scholars as Amici Curiae in Support of Petitioners, Khalil v. Joyce, 777 F. Supp. 3d 369 (D.N.J. Apr. 1, 2025). ↑
268. 8 U.S.C. § 1227(a)(4)(C). ↑
269. Id. § 1227(a)(4)(C)(ii). ↑
270. Brief of Over 150 Immigr. Lawyers in Support of Petitioners, supra note 267; see also Press Release, Deborah Ross & Becca Blaint, Introduce Bill to Repeal Trump Deportation Power Targeting Free Speech, (Aug. 12, 2025), https://ross.house.gov/2025/8/ross-balint-introduce-bill-to-repeal-trump-deportation-power-targeting-free-speech [https://perma.cc/SNS9-9DZL]; Land of the Free Act, H.R. 4959, 119th Cong. (2025). ↑
271. Brief of Over 150 Immigr. Lawyers in Support of Petitioners, supra note 267. ↑
272. White House, Fact Sheet: President Donald J. Trump Takes Forceful and Unprecedented Steps to Combat Anti-Semitism (Jan. 30, 2025), https://www.whitehouse.gov/fact-sheets/2025/01/fact-sheet-president-donald-j-trump-takes-forceful-and-unprecedented-steps-to-combat-anti-semitism [https://perma.cc/5PH5-8GN2]. ↑
273. Id. ↑
274. Jake Offenhartz, Immigration Agents Arrest Palestinian Activist Who Helped Lead Columbia University Protests, Assoc. Press (Mar. 9, 2025), https://apnews.com/article/columbia-university-mahmoud-khalil-ice-15014bcbb921f21a9f704d5acdcae7a8 [https://perma.cc/EGP2-MG9B]. ↑
275. Dep’t of Homeland Sec., Notification of Removability Determinations under Section 237(a)(4)(C) of the Immigration and Nationality Act (Apr. 9, 2025). ↑
276. Donald J. Trump (@realDonaldTrump), Truth Social (Mar. 10, 2025, at 1:05 PM), at https://truthsocial.com/@realDonaldTrump/posts/114139222625284782 [https://perma.cc/5CHE-X7ZN]. ↑
277. Frances Vinall, Columbia Student Protester Sues U.S. to Prevent Deportation, Wash. Post (Mar. 25, 2025), https://www.washingtonpost.com/nation/2025/03/25/trump-lawsuit-ice-columbia-yunseo-chung [https://perma.cc/A436-GSMP]; Niha Masih & Brianna Tucker, Palestinian Columbia Student Detained by ICE at Citizenship Interview, Wash. Post (Apr. 15, 2025), https://www.washingtonpost.com/immigration/2025/04/14/columbia-mohsen-mahdawi-arrested-ice [https://perma.cc/6B9U-C7SW]; Joanna Slater, Detained Tufts Student Must Be Transferred to Vermont, Appeals Court Rules, Wash. Post (May 7, 2025), https://www.washingtonpost.com/nation/2025/05/07/rumeysa-ozturk-tufts-ice-detention [https://perma.cc/4G65-9VW9]. ↑
278. Slater, supra note 277. ↑
279. John Hudson, No Evidence Linking Tufts Student to Antisemitism or Terrorism, State Dept. Office Found, Wash. Post (Apr. 13, 2025), https://www.washingtonpost.com/national-security/2025/04/13/tufts-student-rumeysa-ozturk-rubio-trump [https://perma.cc/8ASV-YNYC]. ↑
280. See Khalil v. Trump Summary, ACLU (Mar. 11, 2025), https://www.aclu.org/cases/khalil-v-trump#summary [https://perma.cc/P88V-EBVQ]; see also Opposition to Petition for Permission to Appeal an Interlocutory Order of the U.S. District Court for the District of New Jersey Pursuant to 28 U.S.C. § 1292(b), Khalil v. Trump, No. 25-8019 (3d Cir. Apr. 22, 2025). ↑
281. Khalil v Trump, 784 F.Supp. 3d 705 (D. N.J. May 28, 2025). ↑
282. Id. at 743. ↑
283. Santel Nurker & Jonah E. Bromwich, Judge Says Law Used to Detain Khalil Is Probably Unconstitutional, N.Y. Times (May 28, 2025), https://www.nytimes.com/2025/05/28/nyregion/mahmoud-khalil-deportation-ruling.html [https://perma.cc/5HD6-38D2]. ↑
284. Khalil v. Trump, 164 F.4th 259 (3d Cir. 2026); see Khalil v. Trump: Case Timeline, Ctr. for Const. Rts. (Oct. 21, 2025), https://ccrjustice.org/home/what-we-do/our-cases/khalil-v-trump [https://perma.cc/2SBJ-V58C]. ↑
285. Immigration and Nationality Act, 8 U.S.C. §§ 1301–1306 (1952). ↑
286. Id. ↑
287. Id. ↑
288. Chinese Exclusion Act, 22 Stat. 58 (1882) (repealed in 1943 by the Magnuson Act); Kitty Calavita, The Paradoxes of Race, Class, Identity, and “Passing”: Enforcing the Chinese Exclusion Acts, 1882–1910, 25 Law Soc. Inquiry 1, 20 (2000) (noting prior to “routinization of passports as identification for travelers,” the federal government constructed, for the first time, “an elaborate system of registration, certification and identification” to monitor and control Chinese immigration). ↑
289. Alien Registration (Smith) Act of 1940, Pub. L. No. 76-670, 54 Stat. 670. ↑
290. Id. ↑
291. Immigration and Nationality Act, 8 U.S.C. § 1301 (1952) (“No visa shall be issued to any alien seeking to enter the United States until such alien has been registered and fingerprinted in accordance with section 1201(b) of this title”); id. § 1302(a) (“It shall be the duty of every alien now or hereafter in the United States, who (1) is fourteen years of age or older, (2) has not been registered and fingerprinted under section 221 (b) of this Act or section 30 or 31 of the Alien Registration Act, 1940, and (3) remains in the United States for thirty days or longer, to apply for registration and to be fingerprinted before the expiration of such thirty days.”); id. § 1304(d) (“Every alien in the United States who has been registered and fingerprinted under the provisions of the Alien Registration Act, 1940, or under the provisions of this Act shall be issued a certificate of alien registration or an alien registration receipt card in such form and manner and at such time as shall be prescribed under regulations issued by the Attorney General.”). ↑
292. Dep’t. of Just., National Security Entry‑Exit Registration: Strengthening Our Entry‑Exit Registration System To Protect Americans From Possible Terrorist Threats (2002). ↑
293. Id. ↑
294. Id. ↑
295. Muzaffar Chishti & Colleen Putzel‑Kavanaugh, Tapping Ancient Wartime and Security Laws, Trump Administration Dramatically Expands Immigration Powers, Migration Pol’y Inst. (Mar. 21, 2025), https://www.migrationpolicy.org/article/trump-registration-alien-enemies-insurrection [https://perma.cc/M8F3-SKGP]; Alien Registration Requirement, U.S. Citizenship & Immigr. Serv. https://www.uscis.gov/alienregistration [https://perma.cc/8VSK-FDD4] (last updated May 6, 2025). ↑
296. Exec. Order No. 14,159, 90 Fed. Reg. 8443 (Jan. 20, 2025). ↑
297. Alien Registration Form and Evidence of Registration, 8 C.F.R § 264 (2025). ↑
298. Id. ↑
299. Id. ↑
300. Id. ↑
301. Exec. Order No. 14,159, 90 Fed. Reg. 8443 (Jan. 20, 2025). ↑
302. Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017); Exec. Order No. 13,780, 82 Fed. Reg. 13209 (Mar. 6, 2017); Proclamation No. 9645, 82 Fed. Reg. 45161 (Sep. 24, 2017); White House, Fact Sheet: President Donald J. Trump Restricts the Entry of Foreign Nationals to Protect the United States from Foreign Terrorists and Other National Security and Public Safety Threats (2025), https://www.whitehouse.gov/fact-sheets/2025/06/fact-sheet-president-donald-j-trump-restricts-the-entry-of-foreign-nationals-to-protect-the-united-states-from-foreign-terrorists-and-other-national-security-and-public-safety-threats [https://perma.cc/4CVL-EV74]. ↑
303. 8 U.S.C. § 1182(f); id. § 1185(a). ↑
304. White House, supra note 302. ↑
305. Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017); Trump v. Hawaii, 585 U.S. 667, 700 (2018). ↑
306. Defendants’ Opposition to Plaintiff State of Wash.’s Motion for Temp. Restraining Ord. at 20–22, Washington v. Trump, 2:17‑cv‑00141 (W.D. Wash. Feb. 2, 2017). The government also noted that executive actions on immigration are “areas . . . within the exclusive domain of the political branches of government. . . . It is simply not possible for the Court here to evaluate the President’s executive order without passing judgment on the President’s national security and foreign affairs determinations.” Id. ↑
307. Washington v. Trump, No. C17‑0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017) (issuing preliminary injunction); Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) (denying government’s emergency motion for stay, leaving injunction in place). ↑
308. Int’l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017); Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017). ↑
309. Hawaii v. Trump, 859 F.3d at 768. ↑
310. Int’l Refugee Assistance Project, 857 F.3d at 601. ↑
311. Id. at 572. ↑
312. Proclamation No. 9645, 82 Fed. Reg. 45161 (Sep. 24, 2017). The order banned and suspended immigrant, business, and tourist visas for foreign nationals from Chad, Libya and Yemen; suspended immigrant and nonimmigrant visas, with the exception of Iranian student and exchange visas; particular government officials and their families from Venezuela were excluded; and barred immigrant visas for noncitizens from Somalia. Id. ↑
313. Trump v. Hawaii, 585 U.S. 667 (2018). ↑
314. See id. at 737–40. Justice Sonia Sotomayor pointed to powerful evidence of anti‑Muslim discriminatory intent in her dissenting opinion. Id. at 722–23 (Sotomayor, J., dissenting). ↑
315. Id. at 710. ↑
316. Myah Ward, Trump Issues New Multi‑Country Travel Ban, Politico (June 4, 2025), https://www.politico.com/news/2025/06/04/trump-issues-new-multi-country-travel-ban-00388047 [https://perma.cc/P665-A7WU]. ↑
317. Id. ↑
318. Id. ↑
319. Proclamation No. 10949, 90 Fed. Reg. 24487 (June 4, 2025). ↑
320. Id. ↑
321. Id. ↑
322. White House (@WhiteHouse) X, President Donald Trump Signs Travel Restrictions Executive Order, at 2:14–2:22 (June 4, 2025), https://x.com/WhiteHouse/status/1930412786271547485 [https://perma.cc/ET5C-G83H]. ↑
323. Divine, supra note 12, at 181–97; Tichenor, supra note 2, at 176–203. ↑
324. Korematsu v. United States, 323 U.S. 214, 246 (1944) (Jackson, J., dissenting). ↑