The centuries-old wartime law invoked by President Trump to summarily deport Venezuelans accused of gang membership was contentious from the moment it was passed and has rarely been used in U.S. history.
Before this month, the law, the Alien Enemies Act of 1798, had been invoked just three times: in the War of 1812, World War I and, most memorably, in World War II, when it was used to justify the internment of Japanese, Italian and German immigrants. The extent of its considerable powers has not been reviewed by the Supreme Court in more than 70 years.
The law’s roots lie in an undeclared sea conflict between a young American nation and France.
President John Adams signed the Alien Enemies Act in July 1798 as the United States came to the brink of war with France.
One in a suite of four laws collectively known as the Alien and Sedition Acts, the Alien Enemies Act was a response to concerns that French immigrants might rise up against the U.S. government. An early draft of the act, rejected by lawmakers, would have punished U.S. citizens who harbored immigrants.
The law empowers the U.S. government to detain and even expel immigrants age 14 or older without a court hearing. It applies in times of declared war and when the United States faces the risk of invasion by a foreign nation — the Adams administration feared France would invade the United States by land.
Another law, the Sedition Act of 1798, cracked down on the press, making it a crime for newspapers to publish “false, scandalous and malicious” stories about the government. The Ipswich Journal of Suffolk, England, reported at the time that the passage of the laws “virtually declared” a war between the United States and France.
But a full-blown conflict did not materialize — the series of naval battles between the United States and France in the late 18th century became known as the Quasi-War. And in the years that followed, the three other components of the Alien and Sedition Acts lapsed.
The Alien Enemies Act, however, lacked a clause setting its expiration and remained on the books. So 14 years after its creation, President James Madison’s administration was able to summon the law to target British immigrants as the United States fought the War of 1812, a nearly three-year conflict over maritime rights.
In a declaration dated July 11, 1812, Mr. Madison’s secretary of state, James Monroe, decreed that “all the subjects of His Britannic Majesty, residing within the United States, have become alien enemies.” The federal government said British immigrants could be detained if they refused to move 40 miles from the coast, away from cities including Boston, New York and Washington.
The scope of the law’s use against British immigrants during the War of 1812 is unclear, because of holes in the historical record, said Katherine Yon Ebright, a lawyer at the Brennan Center for Justice and an expert on the Alien Enemies Act.
“In fact, a copy of the president’s public proclamation invoking the Alien Enemies Act cannot be found,” she said of the law’s use in the War of 1812.
But there is a record of a ruling, by Chief Justice John Marshall, acting as a lower court judge, that ordered the release of a British immigrant. The ruling said the law should not have applied to immigrants who had not been instructed to relocate.
A century passed before the law was used again, this time by President Woodrow Wilson.
The Wilson administration applied the law from the opening days of World War I, requiring German immigrants age 14 or older to be entered into a registry, photographed, fingerprinted and, in some cases, detained, said Prof. Christopher Capozzola, a history professor at the Massachusetts Institute of Technology and an expert on the war.
“It was a pretty dusty statute in 1917,” Professor Capozzola said, but its application was far-reaching, authorizing the detention of some 6,000 Germans. There were no substantial legal challenges.
The law’s most well-known invocation came about a quarter-century later, when President Franklin D. Roosevelt summoned it in the hours after the bombing of Pearl Harbor by Japanese warplanes, an attack that killed more than 2,300 Americans and drew the United States into World War II.
The Roosevelt administration, citing an “invasion” by Japan and the threat of invasions by Germany and Italy, began to round up Japanese, German and Italian immigrants.
Roosevelt did not only rely on the Alien Enemies Act to support the internment camps: He also issued an executive order to support interning U.S. citizens. That executive order was upheld by the Supreme Court in Korematsu v. United States, a notorious 1944 decision that was overturned in 2018.
All told, more than 100,000 people of Japanese descent were forcibly interned in military facilities, gyms, jails, fair grounds and racetracks. Another 10,000 or so Germans and a few thousand Italians were also interned.
Roosevelt contemplated interning every German immigrant without citizenship in the United States, but was discouraged by his advisers, according to the Brennan Center for Justice, a law and policy organization. He was less concerned about Italians, calling them “a lot of opera singers,” Attorney General Francis Biddle later recalled.
In 1948, the Supreme Court rejected a challenge to President Harry S. Truman’s use of the Alien Enemies Act to expel a German immigrant in 1946, after World War II had ended. The ruling in the case, Ludecke v. Watkins, was 5 to 4.
Justice Felix Frankfurter, writing for the majority, said that war “does not cease with a cease-fire order” and that a president’s power under the Alien Enemies Act “begins when war is declared but is not exhausted when the shooting stops.”
Writing in dissent, Justice Hugo L. Black countered that it was “nothing but a fiction to say” that the United States was still at war with Germany, which had surrendered in 1945.
“The 1798 act did not grant its extraordinary and dangerous powers,” Justice Black wrote, “to be used during the period of fictional wars.”
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