donald trump recently announced his intentions use Foreign Enemies Act of 1798 as a means of mass deportation of immigrants. The Alien Enemies Act is part of a notorious bill. Alien and Disturbance Act. This is the only part of this law that currently remains on the books. Unlike the broader Alien Friends Act, which gives the president broad powers to expel and bar entry to the United States “alien persons determined to be dangerous to the peace and security of the United States,” the U.S. government It was rightly condemned as unconstitutional. james madisonThomas Jefferson et al., the Alien Enemies Act states that “if there is a declaration of war between the United States and any foreign nation or government, or any invasion or predatory incursion into the territory of the United States is made or attempted; “Detainment and removal shall only be permitted in cases of threat or threat.” Control of the United States by a foreign country or government. ” In that case, the president would be given the power to detain or remove “all indigenous peoples, nationals, residents, or subjects of any hostile nation or government residing within the United States who are 14 years of age or older.” Actually, I became a naturalized person. ”
Katherine Yon Ebright of the Brennan Center great explanation Explain why the Alien Enemy Act cannot be legally applied to immigrants from countries not at war with the United States. A summary of her analysis follows:
as supreme court and past presidents It is acknowledged that the Alien Enemy Act is a wartime authority and was enacted and enforced under military force. When the Fifth Congress passed this law and the Wilson administration defended it in court during World War I, they believed that non-citizens with ties to foreign belligerents “treated as a prisoner of war“Underneath”Rules of war based on national law.“In the Constitution and other statutes of the late 1700s, the term intrusion teeth used literallyusually refers to a large-scale attack. term predatory invasion Also used literally copyrighted work The term refers to smaller-scale attacks during this period, such as the 1781 Raid on Richmond led by American émigré Benedict Arnold.
anti-immigrant today politician and group encourage people to read ~ without taking it literally intrusion and predatory invasion This is to allow the use of the Alien Enemy Act against illegal immigration and cross-border drug trafficking. These politicians and groups view the Alien Enemies Act as a powerful deportation power. But their proposed interpretation of the law contradicts centuries of legislative, presidential, and judicial practice that support the Alien Enemies Act as a wartime power. Invoking it in peacetime to circumvent traditional immigration laws would be a staggering abuse.
She also makes some other good points. If you are interested in this topic, please read the whole thing!
I would add that the “invasion” or “predatory invasion” in question must be carried out by a “foreign state or government.” This does not include illegal immigration or drug smuggling by individuals, such as what we see today at our southern border. Some might argue that using the word “nation” in addition to “government” means that the former has a different meaning than the latter. Probably so. However, the “state” still does not include private individuals. Rather, it may apply to state-like organizations that are not recognized as governments. For example, the terrorist organization Hamas, which brutally attacked Israel on October 7, 2023, is not recognized as a government, but at least until recently it ruled Gaza like a state. The same could be said of some of the founding-era Indian states (which the United States and European countries did not recognize as full-fledged governments), as well as groups such as: pirates of barbariwas an agent of the Arab states of North Africa.
other placesI explained why the Founding-era understanding of “invasion” was limited to large-scale armed attacks and did not cover things like illegal immigration or drug smuggling (for more information, see Court summary in US vs. Abbott).
Despite strong legal arguments to the contrary, it is possible that President Trump will succeed in using the Alien Enemies Act as a means of detention and deportation. As Ebright points out, the court could rule that the definitions of “aggression” and “predatory intrusion” are “political issues” that courts are not allowed to address. Several previous court decisions have held that the definition of “aggression” in the Constitution is a political question (therefore, state governments have However, since invasion requires a large-scale armed attack, many people believe that illegal immigration does not constitute an “invasion.” (See pages 20-22 of the same magazine) my court brief).
Ebright said that even though the definition of “invasion” is usually a political issue, the Alien Enemies Act should not be used as a tool for mass detention or deportation of immigrants from countries not at war with the United States. , argues (though I think it is correct). It should fall under the “obvious mistake” or “clearly unauthorized exercise of power” exception (baker vs carr (1962)). I would like to add that the whole doctrine of political questions is incoherent and the court should not extend it further.
Nevertheless, there is a risk that they could apply it here and thereby allow Trump to get away with a gross abuse of power that could harm thousands of people. Mass deportations like those envisioned by President Trump cause confusion, increase prices, and cause shortages;. they are Also, more US jobs will be destroyed than created.Because many Americans work in industries that depend on products produced by undocumented workers. There are also large-scale detentions and deportations. Regularly rounding up large numbers of U.S. citizens who are wrongly detained due to poor or non-existent due process protections..
It should also be noted that the Alien Enemy Act applies to immigrants from that country who have not been “naturalized,” and this includes legal immigrants, including permanent resident green card holders. . If President Trump can use it, it could be used against legal immigrants as well as illegal immigrants. And he and his allies repeatedly It became clear They want to reduce legal immigration as well as illegal immigration.
If Trump returns to power, this particular plan could be blocked by the courts. But that’s not certain. Ebright also recommends that Congress simply repeal the Alien Enemies Act (there are many other tools available to address real threats to national security). I agree, but it’s unlikely to happen anytime soon. Therefore, the only surefire way to stop this dangerous abuse of power is to defeat Trump at the polls.
