The Biden-led lawfare against Trump, his administration and his supporters first made use of all sorts of old and obscure legal measures.
Call it the Trump Precedent: If in pursuing a policy, Donald Trump cites a statute that’s been on the books forever, it’s an old law nobody’s thought of in ages and probably should be repealed. If, however, a law of similar age is used against Trump or his administration, it’s a venerable pillar of our civic life and should be applied zealously.
The president has been criticized for applying the 1798 Alien Enemies Act to deport members of foreign gangs like Tren de Aragua immediately with no hearings because they are “perpetrating, attempting, and threatening an invasion … against the United States.” The Supreme Court eventually ruled in May that the Administration’s 24-hour notice to gang members was insufficient and sent the case back to the 5th U.S. Circuit Court of Appeals.
President Trump is also enforcing the Alien Registration Act of 1940, requiring non-citizens 14 years or older who have been in the U.S. for 30 days or more and were not already fingerprinted or registered when they got their visa to register with DHS.
The horror.
But if a law exists, why not enforce it, no matter its age? If a law is outdated, Congress can repeal it. It hasn’t done that. The Constitution is 10 years older than the Alien Enemies Act, but there’s no serious objection to the First Amendment. Put another way, the Biden administration chose not to enforce a variety of immigration laws. The Trump administration is choosing to enforce these. The former should be at least as controversial as the latter.
The Alien Enemies Act was enforced during the War of 1812, World War I, and World War II.The Alien Registration Act was enforced during World War II and in the wake of the September 11, 2001, attacks.
We are not technically at war, but illegal immigration went unchecked during the Biden administration, resulting in an unprecedented crisis starting at our southern border and reaching into various parts of the nation. Foreign gangs brought in narcotics, violence and chaos. The president reached for a variety of laws in the effort to restore order.
But the Trump administration didn’t pioneer the use of old and obscure laws. The media and the Biden administration blazed that trail long ago. In his first term, Trump’s National Security Adviser Michael Flynn resigned after “revelations that he misrepresented the nature of his phone conversations with Russia’s ambassador to the United States.” The media and congressional opponents accused Flynn of violating the Logan Act. That law, passed in 1799, makes it illegal for anyone without authorization to negotiate with a foreign power. But Flynn was part of the administration, and nobody had ever even been tried under the Logan Act. The Act was so obscure ABC News published an article explaining what it was.
The Biden administration wasn’t above creative uses of little-known laws. Before he left office, Biden invoked “the 1953 Outer Continental Shelf Lands Act (OCSLA) to prevent new fossil fuel developments off the East and West coasts of the U.S. as well as in the Eastern Gulf of Mexico and Alaska’s North Bering Sea.” The law doesn’t have a provision for reversing the ban. This wasn’t using a law to target a political foe; it was using it to thwart the will of the people.
Partisan judges make use of irregular lawfare to stymie Trump’s policies. As former Trump appointee Chad Mizelle pointed out, “Since 1963, 75% of all nationwide injunctions have been against President Trump. Ninety percent of those injunctions came from Democrat-appointed judges.”
Trump supporters have also felt the weight of unusual legal measures. Federal prosecutors and sympathetic judges applied “administration of justice” enhancement to the sentences of January 6 rioters. Federal sentencing guidelines allow judges to add more than a year to the sentences of “defendants who disrupt judicial proceedings like grand jury investigations or court hearings.” More than 100 defendants had the enhancement applied to them wrongly. An appeals court overturned them and forced trial judges to recalculate sentences.
Just remember the next time you hear the media attempt to discount an action of the Trump administration based on its usage of a law that may not have been used very frequently or is being used creatively – the real Pioneer was Biden, Trump is simply following suit.
James Fitzpatrick is an Army veteran, a former appointee in the Trump 45 administration, and Director of the Center to Advance Security in America