Tag Archives: Alien enemies Act

Further Thoughts on the Alien Enemies Act.

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            The Alien Enemies Act is constitutional.  The Supreme Court found it so in a 1948 case when it endorsed the order of a lower court that a German-American Nazi had to leave the country.  Trump’s use of the law to justify deportations seems illegitimate.  Still, the commentary on it seems equally revealing. 

            “It’s an 18th century law…”[1]  “We cannot allow antiquated laws to continue enabling discriminatory practices.”[2]  Well, both the Constitution and the Bill of Rights are creations of the 18th Century.  Marbury v. Madison and the Emancipation Proclamation are products of the 19th Century.  So, age is no issue if you like the results, but it is an issue if you don’t like them?    This argument is a flight from honest thought. 

            “No one has tried to argue that that invasion or predatory incursion language could be used in any context other than a conventional war.”[3]  Except that is just what Trump has argued, backed by his Department of Justice.  The Supreme Court has neither rejected nor affirmed Trump’s argument.[4]  Does the author mean to say that the argument is illegitimate because it is not hallowed by time?  This is the opposite of the previous argument.  Furthermore, Plessy v. Ferguson stood as “settled law” for almost a century.  So, hallowed by time. 

            “Historian Joseph Ellis called support for the Alien Enemies Act “unquestionably the biggest blunder” of Adams’ presidency.”[5]  So, an expert attacks the law as wrong right from the beginning.  We defer (or should defer) to expert opinion on the efficacy of vaccines.  Therefore, we should defer to expert opinion on the foolishness of a law passed in the many days ago?  JMO, but Adams’ “biggest blunder” was his support for the Sedition Act, which led to the prosecution of a number of Democratic-Republican journalists.  The Sedition Act was hard to pass because it raised so many doubts even among Federalists.  The application of the Act against political rivals aroused opposition to the Federalists.  John Adams became the first one-term president as a result.  It was repealed after the election of Thomas Jefferson in 1800.  In contrast, Presidents running declared wars against foreign powers have found it a useful tool.  During the Biden administration, bills to repeal the act were introduced in Congress in 2021 and 2023.  Neither bill made it out of committee.[6]  In both cases, the Democrats held the majority in the relevant chamber.  Some Democrats saw utility in keeping the Act.  Is this a case of a respected expert bending his analysis to oppose Trump? 

            That leaves the question of whether Trump’s use of the law in these circumstances is constitutional.  Currently, “the Supreme Court has limited the deportations without ruling on whether Trump may invoke the act.”[7]  So Trump’s actions may yet turn out to be constitutional.    

In the 1948 case, four Justices dissented, arguing that “Due process does not perish when war comes.”[8]  This is a complicated issue, but the one to fight on.  The rest is anti-Trump fluff. 

[1] “The Alien Enemies Act,” The Week, 9 May 2025, p. 11. 

[2] Representative Ilhan Omar (D-Minnesota), quoted in “A push for repeal,” The Week, 9 May 2025, p. 11. 

[3] Georgetown law professor Steve Vladeck, quoted in “The Alien Enemies Act,” The Week, 9 May 2025, p. 11. 

[4] “Supreme Court allows deportations to El Salvador,” The Week, 18 April 2025, p. 5.

[5] Ellis quoted in “The Alien Enemies Act,” The Week, 9 May 2025, p. 11. 

[6] “A push for repeal,” The Week, 9 May 2025, p. 11. 

[7] “The Alien Enemies Act,” The Week, 9 May 2025, p. 11. 

[8] Quoted in “The Alien Enemies Act,” The Week, 9 May 2025, p. 11. 

The Alien Enemies Act. Or, the Aliens Are Enemies Act.

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            As the result of historical experience during the French and Indian Wars, Anglo-Americans regarded France as the enemy and Britain as their benevolent parent-country.  Then the British and their American colonists fell out.  War followed.  During the Revolutionary War, the self-proclaimed United States signed an alliance with the French monarchy.  France loaned money to the Americans and declared war on Britain.  France also sent military forces to America.  The Franco-American alliance remained in effect after the war.  Then the French Revolution broke out, France overthrew the monarchy and declared itself a Republic, and declared war (1792) on everyone except the Man in the Moon and the Americans. 

            Americans divided sharply on how to deal with France.  Many people (often Federalists) hated the French version of revolution.  Many other people (mostly Democratic-Republicans) sympathized, at the least, with the aims of the French revolutionaries.  The issue became a partisan matter.  Congress seized the opportunity to repudiate repayment of the French war loans because they were onerous (1793).  Congress then ratified the “Jay Treaty” which settled disputes between the United States and Britain (1794).  France responded by allowing French “privateers” to seize a lot of American merchant ships in the Atlantic and the Caribbean.  Trying to fend off a war, the Americans sent a delegation to negotiate with France (1797-1798).  This ended badly and a “Quasi-War” at sea broke out (1798-1801).[1] 

            President John Adams and the Federalist majorities in Congress passed a package of four “Alien and Sedition Laws” (1798).  Formally, Adams feared that the French would try to spread their revolutionary ideology to the United States.  Informally, the Federalists had come to see the Democratic-Republicans as inclined toward the same policies as the French.  So, stomp on them. 

            The “Alien Friends Act” allowed the President to deport anyone considered to be “dangerous to the peace and safety of the United States.”  The law sun-setted after two years, and the government didn’t make much of an effort to enforce it anyway. 

            The “Naturalization Act” extended the residence requirement before obtaining citizenship from 5 years to 14 years.  Lots of/most immigrants voted Democratic-Republicans once they got the right to vote.  The law was repealed in 1802. 

            The “Sedition Act” criminalized saying mean things about Federalists in government.  A whole bunch of Democratic-Republican writers for the media of the day were prosecuted.  (My personal favorite is Jame Callender.)  The law expired in 1801. 

            The “Alien Enemies Act” granted the President the authority to arrest, imprison, or deport any non-citizen during a time when the United States was at war with, either formally or informally, a foreign country from which that non-citizen originated.[2]  The informal part gave the president the right to act in something like the undeclared “Quasi-War” or if an attack occurred when Congress could not be consulted immediately.  The Act has never been repealed.  The Act has been used in the War of 1812, the First World War, and the Second World War. 

            So, can an old law be re-interpreted for new purposes?  If so, who can re-interpret it? 

[1] XYZ Affair – Wikipedia (sort of a “Town Mouse and Country Mouse” affair) and Quasi-War – Wikipedia 

[2] OK, that’s a long and clotted sentence.  The point is, the United States is not now at war with or suffering a “predatory incursion” ordered by a foreign country.  People free-lancing a “predatory incursion” isn’t covered by the language of the law.  Ipso fatso, President Trump doesn’t have a leg to stand on.