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 It was repealed after the election of Thomas Jefferson in 1800.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.
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