How Trump Uses Dormant Laws to Amass Power

Congress has spent the last two centuries passing laws. These laws often remain on the books, so to speak, long after their purpose has been fulfilled until lawmakers repeal them. Occasionally the Trump administration finds something buried within this back catalogue that it can wield for its own purposes—and to no good end.This summer, for example, the Trump administration has moved to revive two different courts that are authorized by Congress but have laid moribund for decades or even centuries. One of them is the Alien Terrorist Removal Court, or ATRC, which the Justice Department plans to use to deport certain applicable immigrants in classified settings. The pending ATRC case will be the first one ever heard by that court since Congress permitted its creation in a 1996 anti-terrorism law.Earlier this week, the department also began moving towards reviving prize courts, which allow the U.S. government to seize foreign vessels captured during war—more specifically, any Iranian oil tankers captured during the ongoing illegal war with Iran. Under federal law, these prize courts operate within the existing federal district courts to hear cases on the legality of a ship’s capture and pave the way for the vessel’s eventual sale, as well as the sale of any goods on board.The Trump administration’s enthusiasm for reviving moribund laws to accomplish its policy goals should inspire Congress to consider repealing or revising them. Trump and his allies have inflicted plenty of harm through violating federal laws during his second term. Another important problem is when he abuses and misuses existing laws. If Congress is interested in restoring its own primacy in our constitutional order, it should reconsider its own past missteps as well.Both of the court revivals illustrate the problem. While federal law authorizes the use of prize courts, they have not meaningfully existed since the Civil War. The Union Navy blockaded Southern ports throughout the war and seized military and civilian vessels alike. Once captured, the ships were typically brought to Union-held ports for disposal by prize courts. In 1863, the Supreme Court rejected legal challenges to the Southern blockade and upheld President Abraham Lincoln’s authority to seize and sell ships and goods acquired from it.As Bloomberg noted when it reported on the prize courts’ revival earlier this week, the courts fell into disuse after the Spanish-American War ended in 1900 and were moribund after World War II. They reflect a 19th-century understanding of naval warfare where both a nation’s navy and private citizens acting as privateers could capture vessels on the high seas. The changing nature of naval warfare helped render these tactics obsolete: the average American boat owner these days would have an easier time sailing to the moon than capturing an armed enemy warship.A Congressional Research Service report in 2024 noted that Congress abolished prize money for private citizens in 1899, and any proceeds from prize-court cases now goes into the Treasury’s general fund instead. The Trump administration’s plans, though still vague, appear to be centered on creating a faster, easier legal pathway to sell captured Iranian oil. This may be riskier for the administration than it looks, since it will give federal courts an opportunity to directly consider whether the ships and goods were lawfully seized. As Lincoln’s own experience showed, such cases can allow judges to consider legality of the war itself. The sixteenth president prevailed; the forty-seventh might not.The ATRC case is a dark reflection of the prize courts—a wholly modern court system created by Congress within living memory that went unused from the start. The ATRC is authorized by the Antiterrorism and Effective Death Penalty Act, or AEDPA, a 1996 law that expanded the executive branch’s powers in the wake of the Oklahoma City bombing and other attacks. Like many emergency laws, it reflects the haste and overzealousness of its drafters. AEDPA today is best known (and often criticized) for limiting habeas relief for federal prisoners in courts, for example, even in non-terrorism cases.Congress already built a legal framework for deportations and removals of foreign nationals in the Immigration and Nationality Acts. Under AEDPA, the executive branch can instead shunt a suspected “alien terrorist” into the ATRC for removal hearings instead. This power is not unlimited: a federal judge sitting on the court must approve the person’s designation as an alien terrorist based on a probable-cause standard, which the Justice Department can meet with classified evidence not reviewable on public court dockets or, in some circumstances, by the person who is threatened with deportation.It is telling that the federal government had never before used the ATRC to deport someone, even at the height of the War on Terror under the George W. Bush administration. One legal scholar speculated in a 2008 law-review article that the Justice Department had avoided using the ATRC because it did not want to risk an “adverse constitutional ruling” on appeal. (In the early 2000s, the Bush administration lost multiple Supreme Court cases about the constitutional status of Guantanamo Bay detainees.) Indeed, the use of secret evidence to designate someone as a terrorist and order their removal raises significant due-process questions.Even if the Trump administration is not able to make full use of these courts, their sudden emergence or re-emergence after decades of disuse is a cautionary tale. Congress has a pernicious habit of leaving loaded guns lying around in the United States Code. Just because past presidents haven’t picked them up and abused them doesn’t mean Trump and his successors should be able to do so.One of Trump’s first experiments with moribund laws this time was to invoke the Alien Enemies Act of 1798 last year against Venezuelan nationals living inside the United States who it claims are members of Tren de Aragua, a Venezuelan gang. History students may remember the law as one component of the Alien and Sedition Acts, a package of controversial and constitutionally dubious laws enacted by the John Adams administration in the late 1790s. The Alien Enemies Act was the only one that wasn’t repealed, though it remained largely unused until recently.Trump officials apparently saw it as a way to bypass the other deportation safeguards built into federal law by Congress. The White House invoked it last spring to send more than 200 Venezuelan immigrants to a notorious prison in El Salvador, even though at least some of them had no proven ties to the group. The Fifth Circuit Court of Appeals froze future deportations last fall, forcing the administration to use other deportation mechanisms, but the State Department said in January that it lost track of more than 100 people deported by the Trump administration before the courts stopped them.Another law that would be worth tweaking is the District of Columbia Home Rule Act of 1973. The Constitution gives Congress full authority to govern the federal enclave in which it and the rest of the federal government operates. Since 1973, Congress has delegated much of that authority to an elected mayor and city council. This law is not moribund, of course, but some of its under-used provisions gave too much discretion to the president and compromised the law’s intent. Since the spring of 2025, Trump invoked emergency provisions of the Home Rule Act to commandeer the Metropolitan Police Department on a temporary basis and to deploy National Guard troops on the streets of the Capitol. While the provisions were meant to be used in cases of civil unrest, Trump wielded them for aesthetic and ideological reasons to station armed soldiers through the seat of the republic. Similar efforts to deploy troops into American cities hit a wall at the Supreme Court last December, but D.C.’s unique legal status left it vulnerable to continued occupation.A revised version of the Home Rule Act could set harder limits on how long the president can command D.C. police resources or revoke that power altogether. More urgently, it could explicitly forbid the president from deploying the National Guard within the boundaries of D.C. without the mayor’s assent. National Guard troops have behaved fairly well during their deployment in the capital; a few of them even helped me dig out our car after February’s ice storm. Their individual conduct does not justify the un-American nature of their mission, which is an insult to our nation’s republican values and our abhorrence of anything resembling military rule. (In recent interviews, some National Guard members formerly assigned to D.C. have spoken against their deployment.)Perhaps the worst loaded gun of all is the Insurrection Act. The vaguely written statute, which was largely written in 1807, allows the president to temporarily deploy the U.S. military for civilian law-enforcement purposes. Past presidents have used it in cases of serious civil unrest, like the Los Angeles riots in 1992. Trump has threatened to use it throughout his presidency and seems to think of it as a “win” button of sorts against protests and political movements that he opposes. Congress could revise the law by narrowing the circumstances under which it can be invoked and setting a clear timetable for which congressional authorization would be required to maintain it.Other flawed defunct and partially defunct laws abound. Congress might want to revisit the International Economic Emergency Powers Act of 1977 after Trump used it to ignite a global trade war last year and levy hundreds of billions of dollars in tariffs on American businesses and consumers. The Supreme Court finally stopped him earlier this year, but its broad language could cause future problems. A Democratic-led Congress might also be interested in scrapping the Comstock Act’s un-invoked ban on using the Postal Service to distribute abortion-related medication. (Trump is personally opposed to this strategy, but his successors probably won’t be.)No shortage of reforms will be necessary to address Trump’s illegal acts after his presidency, of course. But plenty of attention should also be paid to how he has lawfully wielded power as well, or exploited ambiguities in the unwise grants of power that Congress has given to the White House over the years. To help restore Congress as the paramount branch of our government, current and future lawmakers should reclaim the tools and powers that their predecessors handed over too hastily to past Oval Office occupants.