President John Adams regretted signing the Alien & Sedition Acts. Imagine what he would say today if he learned that one of his successors in office was using one of those laws–The Alien Enemies Act–to detain and deport gang members.
President Trump’s creative re-reading of the Alien Enemies act will make its way to the US Supreme Court by June to determine whether it can be invoked by a President without a declaration of war by Congress. The Court will also need to decide whether the law can be expanded to be used against criminal organizations in addition to hostile foreign nations or military invasions.
The Court has already ruled against President Trump on the due process question in Trump v. J.G.G. In that case the U.S. Supreme Court ruled that non-citizens challenging their removal under the Alien Enemies Act must bring habeas petitions in the district where they are detained. The justices did not address whether the Act actually allows them to be deported, but that issue will soon be addressed.
Origin of the Alien Enemies Act
The Alien Enemies Act is part of the Alien and Sedition Acts of 1798. It states:
Whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President of the United States shall make public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, 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.
The Act was passed in the late 18th Century during a time when there was widespread hostility to France by many in the United States, as the two countries were on the brink of war. Proponents of the law alleged that France had infiltrated the country with spies preaching “subversive” ideas and activities. Rep. Otis, the author of the House bill, argued, “[A] band of spies…spread through the country from one end of it to the other who, in case of the introduction of an enemy into our country,” might join the enemy “in their attack upon us, and in their plunder of our property…”
In addition to enacting the Alien Enemies Act, Federalist-controlled Congress raised the residency requirements for citizenship from 5 to 14 years, authorized the President to deport “aliens” suspected of “treasonable or secret machinations against the government,” and made it a crime for American citizens to “print, utter, or publish…any false, scandalous, and malicious writing” about the government.
While President Adams supported the Alien and Sedition Acts, they ultimately served as his undoing. The rival Democratic-Republicans, led by Thomas Jefferson, won the White House two years later. Once in office, President Jefferson either repealed or allowed most of the acts to expire, with the exception of the Alien Enemies Act.
The Alien Enemies Act was only used three times in that nation’s history. It was used to require British nationals to report to the federal government during the War of 1812. During World War I, President Woodrow Wilson invoked the Act to place more than 6,000 nationals of the German Empire, Austria-Hungary, the Ottoman Empire, and Bulgaria into internment camps.
Korematsu v. United States
The federal government last invoked the Alien Enemies Act during World War II, when the law was used to force thousands of noncitizens of Japanese, German, and Italian descent into internment camps. The federal government has since formally apologized for its actions, and the Supreme Court decision upholding the government’s use of internment camps is largely viewed as one of its worst.
In Korematsu v. United States, 323 U.S. 214 (1944), the U.S. Supreme Court upheld an Executive Order that banned American citizens of Japanese descent from certain areas in the name of national security. The case, which did not directly involve the Alien Enemies Act, was just one of several lawsuits challenging the constitutionality of internment camps during World War II.
In the early days of the conflict, President Franklin Roosevelt issued Executive Order 9066, which authorized the military to ban all persons of Japanese ancestry, regardless of citizenship, from areas of the West Coast deemed important to national security. The Japanese Americans that were forced to leave their homes were required to stay in internment camps for the duration of the conflict. Fred Korematsu, an American-born citizen of Japanese ancestry, refused to leave his California home and was charged with remaining in the prohibited area in violation of the exclusion order.
By a vote of 6-3, the Court held that the exclusion order was constitutional. According to the majority, the need to protect national security can trump individual rights in some circumstances.
“Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions,” Justice Black wrote. “But when, under conditions of modern warfare, our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.”
Today, the Korematsu decision is widely considered one of the darkest moments in the Supreme Court’s long history. Legal scholars have described it as “an odious and discredited artifact of popular bigotry” and as “a stain on American jurisprudence.”
While the Court has not yet formally overruled Korematsu, Chief Justice John Roberts did formally rebuke it in the Court’s 2018 decision in Trump v. Hawaii. “The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—’has no place in law under the Constitution,’” Roberts wrote, quoting Justice Robert Jackson’s original dissent.
President Trump’s Reliance on the Alien Enemies Act
Today, the Act is part of the Trump Administration’s multi-faceted immigration strategy. Proclamation No. 10903 authorizes the expedited removal of all Venezuelan citizens ages 14 and older deemed members of TdA and who are not U.S. citizens or lawful permanent residents, characterizing them as “a danger to the public peace or safety of the United States.”
While the justices were able to sidestep deciding the merits of cases challenging the Proclamation earlier this month, a new case is headed back to the high court for review in June.