Opinion: Immigration court backlog crisis could make mass deportations inevitable

At the Oct. 11 campaign rally in Aurora, Colo., former President Donald Trump announced that if he is elected again, he will use the Alien Enemies Act of 1798 to conduct mass deportations of undocumented immigrant criminals.

The act does not require individualized notice or a hearing, nor does it give an opportunity for the immigrant to appeal a decision. And it does not specify a burden of proof that the government must satisfy.

Are mass deportations under the Alien Enemies Act really necessary? Unfortunately, there doesn’t seem to be an alternative.

The Biden-Harris administration has overwhelmed our immigration courts by bypassing the visa system to release more than 5.4 million inadmissible migrants into the U.S. and failing to apprehend approximately 1.9 million “ got-aways .”

This has caused a massive increase in the immigration court’s backlog. It was just under 1.3 million cases when the Biden-Harris administration began, and as of the end of September, it had risen to more than 3.7 cases .

A TRAC immigration report released on Sept. 20 states that it is no longer possible to estimate wait times for appearing before an immigration judge; too many of the migrants waiting for removal proceedings haven’t been scheduled for a hearing yet.

The situation is aggravated by the Biden-Harris administration’s failure to ensure that the deportation orders the judges issue in removal proceedings are executed. In fiscal 2023, Immigration and Customs Enforcement, the agency charged with enforcing our immigration laws in the interior of the country, was only able to remove 142,580 (11 percent) of the 1,292,830 immigrants already subject to final deportation orders.

The absence of meaningful interior enforcement encourages illegal border crossers to keep trying until they succeed in reaching the interior.

Congress did not directly regulate immigration before 1798; it left this up to the states, with each maintaining its own immigration laws.

This did not change until there was an undeclared war against France. Federal officials thought a French invasion was imminent and were afraid that French sympathizers in the U.S. would support it. The Alien Enemies Act was enacted to permit the president to summarily deport French nationals living in the United States.

More than 200 years have passed since then, but its statutory provisions have not been changed significantly.

The president can invoke this authority with a proclamation “[w]henever 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.”

Some politicians contend that authority under the Alien Enemies Act can be used to address unlawful migration and drug trafficking, which they describe as a rhetorical invasion or predatory incursion. The Alien Enemies Act has only been used when Congress has declared war, so there is no case law interpreting the meaning of “invasion” or “predatory incursion.”

According to Katherine Yon Ebright , a counsel in the Brennan Center ’s Liberty and National Security Program, “There is no plausible basis for saying that migration or narcotics trafficking constitutes an invasion or predatory incursion.” But that doesn’t mean that the courts will intercede if a president invokes the Alien Enemies Act on that basis.

The courts might treat a president’s finding that an increase in migration or narcotics trafficking constitutes an invasion as final and unreviewable pursuant to the “political question” doctrine. This doctrine provides that an issue may be so politically charged that federal courts, which are an apolitical branch of government, should not adjudicate it.

“The last time the Alien Enemies Act was challenged, in Ludecke v. Watkins in 1948, the Supreme Court upheld President Harry S. Truman’s extended reliance on the law three years after the end of World War II,” says Yon Ebright. “The Court reasoned that the question of when a war terminates and wartime authorities expire is too ‘political’ for judicial resolution.”

Does this mean that Trump’s intended use of the Alien Enemies Act would withstand judicial scrutiny? I’m not sure. In any case, his decision to conduct mass deportations under that Act would be litigated all the way to the Supreme Court, as was the case with his Travel Ban .

CNN claims that Trump is making false statements about how many migrants with criminal records the Biden-Harris administration is releasing into the country. That may be true, but CNN is missing the point — namely, that there are too many undocumented migrants in the United States who are dangerous criminals.

According to a letter from an ICE deputy director, as of July 21, 2024, there were 662,566 undocumented immigrants in the United States with criminal histories. This includes 435,719 with convictions, and 226,847 with pending charges.

Their offenses include 13,099 homicides; 15,811 sexual assaults; 2,521 kidnappings; 13,423 weapon offenses; 10,031 robberies; 56,533 dangerous drug offenses; 14,301 burglaries; and 62,231 non-sexual assaults.

The Biden-Harris administration has had almost four years to remove the deportable migrants in that group, and the offenses indicate that many of them are deportable. But neither Biden nor Harris did. They have let more than 7 million illegal border crossers into the country that little, if anything, is known about.

Frankly, I don’t understand why they haven’t deported the undocumented immigrants who are dangerous criminals. They stopped enforcing the immigration laws against undocumented immigrants who are just here illegally so they could focus their resources on deportable migrants who pose a threat to national security, public safety and border security. Aren’t dangerous criminals a threat to public safety?

If Congress doesn’t pass legislation to end the practice of bypassing the visa system to let migrants who can’t get visas into the country, future administrations will have no alternative to resorting to extreme measures like the Alien Enemies Act — regardless of party affiliation.

And if Kamala Harris is our next president, and she continues the Biden-Harris administration’s immigration policies , the backlog is likely to get much worse.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years .

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