Sarat is the William Nelson Cromwell professor of jurisprudence and political science at Amherst College.
As the 2024 presidential election enters its final phase, Donald Trump has gone full bore in following the frightening playbook of wannabe dictators. He also plans to dust off old laws that will allow him to carry out his anti-immigrant crusade and use the American military against people he calls the “enemy within.”
At a rally in Aurora, Colo., on Oct. 11, the former president promised to be America’s protector. He said that “upon taking office we will have an Operation Aurora at the federal level” and undertake a mass removal of illegal immigrants.
Even as he has ramped up his chilling threats, his poll numbers have been rising. Parts of his message seem to be resonating with voters.
To take one example, polls now show that “More than half of all Americans, including a quarter of Democrats, support the mass deportation of immigrants who are living in the country illegally.” Public support for such a draconian policy has increased by 11 percent since 2021.
Last May, Trump made clear that he would “have no problem using the military, per se,” to deport millions of people. He now openly acknowledges that mass deportations would be “a bloody story.”
Sign up for The Fulcrum newsletter
The former president contends that laws meant to prevent the use of the military against civilians inside the United States would not be applicable if he ordered the military to round up migrants. “These aren’t civilians,” Trump argues. “These are people that aren’t legally in our country. This is an invasion of our country.”
With three weeks left in the presidential campaign, and as Trump reiterates his plan to use the military against civilians and his political opponents, retired generals who served in the Trump administration need to step out of the shadows. People like James Mattis (Trump’s first secretary of defense), John Kelly (who served as chief of staff) and Mark Milley (chairman of the Joint Chiefs of Staff) must come forward and remind voters about what they have said about the threat Trump poses to American democracy and the freedom that Americans now enjoy.
In the meantime, what Trump said in Aurora cannot be dismissed as an off-the-cuff remark. Reading from his teleprompter, Trump promised that as soon as he got back to the Oval Office he would invoke “the Alien Enemies Act of 1798 … to target every migrant criminal network operating on American soil” and expedite their removal.
The way that act has been used in the past is a stain on our history.
As the Brennan Center for Justice observes, “The Alien Enemies Act of 1798 is a wartime authority that allows the president to detain or deport the natives and citizens of an enemy nation.” The act refers specifically to “invasions,” which may explain why Trump regularly refers to the influx of illegal immigrants into this country in those terms.
The law “permits the president to target these immigrants without a hearing and based only on their country of birth or citizenship … it can be — and has been — wielded against immigrants who have done nothing wrong, have evinced no signs of disloyalty, and are lawfully present in the United States.”
No wonder Trump can’t wait to get his hands on it.
If he does, he will follow in the footsteps of President Woodrow Wilson, who invoked it during World War I to target people from Germany living in the United States. The act also provided the legal basis for the infamous internment of Japanese Americans during World War II.
Wilson continued to use the act after the war ended, a precedent followed by President Harry Truman, who relied on it for authority to continue the internment and deportations started under Franklin Delano Roosevelt. The Supreme Court upheld the Truman administration’s extended reliance on the Alien Enemies Act.
Can anyone imagine that the court’s current MAGA majority would do anything different?
Trump’s speech at Aurora didn’t stop with his remarks about the Alien Enemies Act. He went on to offer some thoughts about the role of the military if he is reelected.
“We have,” Trump told a cheering audience, “the greatest military in the world, but you have to know how to use them. It’s the enemy from within. All the scum that we have to deal with that hate our country. That’s a bigger enemy than China and Russia!”
On Sunday, he reprised the “enemy from within” line in a Fox News interview.
In response to a question about whether he was worried about violence on Election Day, the former president quickly pivoted to his usual anti-immigrant riff. “I think,” Trump insisted, “the bigger problem is the enemy from within, not even the people that have come in and destroying our country and by the way, totally destroying our country. … I think the bigger problem are the people from within.”
Leaving nothing to the imagination Trump went on to say, “We have some very bad people. We have some sick people, radical left lunatics. It should be very easily handled by, if necessary, by National Guard or, if really necessary, by the military.”
Though he did not say it to Fox, the former president plans, as the Brennan Center reports, “to invoke the Insurrection Act, which allows the president to use the military as a domestic police force, on his first day in office.“ Like the Alien Enemies Act, the Insurrection Act has a long history.
It was first enacted in 1792 and does not define what counts as “insurrection” and “rebellion.” The Insurrection Act was kept on the books a century later when Congress prohibited “the president from using federal troops to enforce civilian law under most circumstances.”
Stirring up fear of internal enemies and radical leftists also has a long history. That history offers a troubling warning about Trump’s musings about what he will do to people he considers “very bad.”
That prospect underlines the urgency of the present moment. If Trump wins on Nov. 5, we would be left with freedom for those who do not offend the powerful, and repression — enforced by the military — for everyone else.
Is that the future that people who spent their lives wearing the uniform of our country want for themselves or the branches of the armed forces that they led? If it is not, then Mattis, Kelly and Milley need to speak out loudly and repeatedly.
Recall that in 2020, Mattis denounced Trump’s plan to use the military against protesters after the murder of George Floyd. He warned that doing so would “erode … the moral ground that ensures a trusted bond between men and women in uniform and the society they are sworn to protect, and of which they themselves are a part.”
He said that Trump’s behavior in office made a “mockery of our Constitution.”
In 2023, Kelly went on the record to describe the former president as “A person that has no idea what America stands for and has no idea what America is all about. … A person who admires autocrats and murderous dictators. A person that has nothing but contempt for our democratic institutions, our Constitution and the rule of law.”
And just this year, Milley apparently told The Washington Post’s Bob Woodward that Trump is a “fascist to the core” and “the most dangerous person to this country.”
Those retired military leaders, all of whom have served their country so well, can do so again by going on television and using social media every day to remind moderates and undecided voters of their warnings about Trump. There is no time to waste.
Imagining constitutions
Douglas Sacha/Getty Images
