[President-elect Donald Trump is preparing to use a series of centuries-old laws and legal theories to drive his first-year agenda, particularly on the border and birthright citizenship. He has said he intends to use an obscure 1798 law to speed deportations and has hinted at the possibility of invoking a separate law with roots in the Whiskey Rebellion of 1794 to deploy the military on American soil.
Trump has framed the laws as harking back to a more muscular time in American politics, suggesting he may use the powers signed into law by Presidents John Adams, Thomas Jefferson and others to confront the “enemy from within” and carry out mass deportations of undocumented immigrants.
However, at least some of the authorities Trump is preparing to claim have fraught histories, and their invocation will queue up confrontations with an unpopular 6-3 conservative Supreme Court that is being closely watched for its appetite to act as a guardrail on the new administration.
The 1807 law, known as the Insurrection Act, gives the president “enough discretion that he could drive a truck through” its requirements to deploy the military at home, such as for immigration enforcement. The law was last used during World War II to imprison Japanese nationals and others, and experts say its invocation outside of wartime would be a clear abuse.
Trump has also vowed to use the Alien Enemies Act of 1798 to “target and dismantle every migrant criminal network operating on American soil.” The law allows the federal government to expedite deportations of citizens of a “hostile nation” in times of war or when an enemy attempts an “invasion or predatory incursion” into the United States.
However, experts say the incoming president will face an uphill fight defending the law in court, in part because of the history of how it has been used. The Supreme Court last considered the Alien Enemies Act in 1948, giving President Harry Truman broad deference to decide when the law could be invoked.
Trump has also flirted with using the military for domestic purposes, including during his first term. He has discussed using the military or National Guard to help with the deportation of millions of undocumented immigrants, and has suggested that he would rely on the Insurrection Act to carry out such a policy.
The president-elect is also keen to reopen an old fight over birthright citizenship, which has been settled law since the Supreme Court ruled in 1898 that people born on US soil are citizens, even if their parents are not. Trump has long railed against birthright citizenship, which is protected under the 14th Amendment.
However, legal experts on both ends of the political spectrum believe history would work against Trump. “If the Supreme Court sticks to its ‘history and tradition’ approach, it will not uphold an executive order denying birthright citizenship for children of unauthorized aliens,” said Rogers Smith, a professor at the University of Pennsylvania. “There’s no history or tradition supporting such an executive action, and there’s a long history and tradition of recognizing such children as birthright citizens.”
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