Immigration

Ilya Somin | 10.13.2024 4:20 PM

Donald Trump recently announced his intention to use the Alien Enemies Act of 1798 as a tool for mass deportation of immigrants. The Alien Enemies Act is a component of the notorious Alien And Sedition Acts. It's the only part of that legislation that remains on the books today. Unlike the more sweeping Alien Friends Act, which gave the president broad power to deport and bar any "aliens as he shall judge dangerous to the peace and safety of the United States," and was therefore rightly denounced as unconstitutional by James Madison, Thomas Jefferson, and others, the Alien Enemies Act allows detention and removal only when there "is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government." In that event, the president is given the power to detain or remove "all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized."

Katherine Yon Ebright of the Brennan Center has an excellent explanation of why the Alien Enemies Act cannot legally be used against migrants from countries with which the US is not at war. Here's her summary of her analysis:

As the Supreme Court and past presidents have acknowledged, the Alien Enemies Act is a wartime authority enacted and implemented under the war power. When the Fifth Congress passed the law and the Wilson administration defended it in court during World War I, they did so........

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