President Donald Trump loves the Alien Enemies Act of 1798.
At a campaign rally in Arizona in 2024, Trump said that when he was elected president he would use the act to target undocumented criminal immigrants. “Think of that—1798,” he said with a laugh. “Oh, it’s a powerful act. You couldn’t pass something like that today.”
Well, he was right about that.
In Proclamation 10903 on March 14, Trump invoked the Alien Enemies Act to declare that the Venezuelan gang Tren de Aragua (TdA) was invading the United States of America and that Venezuelan members of TdA should be apprehended and expelled from the U.S.
Last week, the U.S. Supreme Court joined a number of other lower courts in ruling that the Trump administration cannot deport a group of Venezuelan detainees under the law.
The 1798 law says that “whenever there shall be a declared war” or “any invasion or predatory incursion,” “all natives, citizens, denizens, or subjects of the hostile nation…, being males of the age of fourteen years and upwards, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies.”
It also suggests that it is the president himself who is authorized to “direct” the expulsions.
Note as well that the Alien Enemies Act begins with the dependent clause, “whenever there shall be a declared war”—and, of course, the Constitution says only Congress can declare war.
Although it has rivals, the Alien Enemies Act is one of the worst laws still in force in the United States, and it probably violates the Constitution to boot.
Now, the President has taken this dangerous law and made it even more destructive. The Trump Administration claims that the president can declare groups of individuals “enemy aliens” even without a formal declaration of war. They say that the “invasion” at the border, and potential terrorist attacks, are national security threats that are the equivalent of war.
But one judge after another has ruled that President Trump’s use of the Alien Enemies Act is illegal. Texas District Judge Fernando Rodriguez Jr., a Trump appointee, wrote that Trump’s invocation of the law “is contrary to the plain, ordinary meaning of the statute’s terms.” New York District Judge Alvin Hellerstein wrote that there is no evidence that these immigrants, even ones who are accused of having committed crimes, “are engaged in an ‘invasion’ or ‘predatory incursion.” To the government’s argument that no one can second guess the president’s designation of these men as criminals, “it is wrong as a matter of law and an attempt to read an entire provision out of the Constitution.”
And of the government’s argument that the criminal gang’s presence in the U.S. was an invasion, Colorado District Judge Charlotte N. Sweeney wrote, “This argument and the authority marshalled in support of it are unpersuasive.”
The Alien Enemies Act was written during a phony war and is now being used to justify another phony war.
The 1798 law is often referred to as a “war-time” act. But the United States was not at war in 1798. The Federalist party, then led by president John Adams, was hyper-ventilating about a possible French invasion and the French Navy was seizing American merchant vessels in the Caribbean. But there was no invasion. There was no incursion. There was no war. In fact, historians refer to this period as the “Quasi War” with France. (Quasi. adj., “seemingly; apparently, but not really.”)
The Federalists were also suspicious that the Democratic-Republicans, led by Thomas Jefferson, might be in cahoots with France to take over the government, and the law was also meant to intimidate the Jeffersonians in case they were going to side with France. Adams convened a special session of Congress and authorized the call up of 80,000 militiamen, but instead of declaring war, he decided to send an envoy to France to negotiate.
The Alien Enemies Act was motivated by the idea that in the event of war with France, French emigres and immigrants might act as spies and “fifth columnists” to overthrow the republic. The Federalists believed that Jeffersonian newspapers were printing pro-French propaganda as a prelude to a full-fledged French invasion and that Democratic-Republicans may have been collaborating with the French government.
In fact, the Alien Enemies Act was part of a suite of laws known as the Alien and Sedition Acts passed by the Federalists which included the Alien Friends Act, which allowed the president to expel any alien without a hearing or even a reason, and the infamous Sedition Act which made it a crime penalized by imprisonment and a fine to criticize the government or the president of the United States. That law thankfully lapsed in 1800, even though the new president, Thomas Jefferson, later used it to sue a handful of newspaper editors for libel during his first term. “These acts,” writes the great American historian Gordon Wood, “are considered among the most disastrous, misguided, and blatantly unconstitutional legislation in American history.”
What scholars argue makes the law unconstitutional is that these designated “alien enemies” can be arrested without due process, and have no habeas corpus rights—that is, the right to challenge one’s arrest or detainment as being unlawful. The Supreme Court has said that it is “well established” that the “Fifth Amendment entitles aliens to due process of law” in removal proceedings. All nine members of the Supreme Court agreed that individuals subject to detention and removal under the Alien Enemies Act are entitled to judicial review and that they should be able to file a writ of habeas corpus.
The Trump Administration has not permitted them to do so.
This is the fourth time in American history that the Alien Enemies Act has been used. During the war of 1812, the Madison Administration required all British nationals to report to the government, and give their age, address, and the length of time they were in America. In 1917, Woodrow Wilson used the act to curtail the activities and speech of German citizens, leading to the internment of more than 6000 Germans, though they were provided with a hearing. The most grievous use of the act was by Franklin Roosevelt who used it to intern over 100,000 Japanese Americans during World War II—without providing them with a hearing.
While there have been a few efforts to repeal the law, it was also subjected to review by the Supreme Court in the 1946 case, Ludecke v. Watkins. A year after World War II officially ended, a German national named Kurt Ludecke sued to prevent his deportation as an “alien enemy” under the Alien Enemies Act. He lost the case and the majority opinion was written by Justice Felix Frankfurter who maintained that a state of hostilities still existed with Germany and that the act precluded judicial review based on the executive authority of the president. But the decision in Ludecke v. Watkins lives on its eloquent dissents from Justices Hugo Black and William O. Douglas.
Justice Douglas wrote that due process overrides the authority of any government official and that “it is well established that the war power does not remove constitutional limitations safeguarding essential liberties.” Justice Black said that “it was nothing but a fiction” that we were still at war with Germany. And then he added, the law was based on the fear that even the ideas of these immigrants was dangerous and needed to be suppressed. That, he wrote, was inconsistent with “this nation’s belief that the spread of political ideas must not be suppressed.” The government, he suggested, was not only attempting to suppress due process rights but free speech through a blunt enforcement of the Alien Enemies Act.
His words ring even more truly today.
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