BREAKING: Trump Invokes 1798 Wartime Law that Paved the Way for Japanese Internment
The repugnant law, known as the Alien Enemies Act, will allow Trump to detain and deport noncitizens without due process.
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-Mehdi
Donald Trump on Saturday invoked a wartime relic known as the Alien Enemies Act of 1798 to speed up his terrifying mass deportation effort. You read that right: Trump plans to use a wartime authority from over two centuries ago to help carry out his dangerous anti-immigrant plan in a time of peace.
Trump claims he’s targeting the Venezuelan gang Tren de Aragua (TdA), which he declared a “national terrorist organization” on his first day back in office. In invoking the act, Trump wrote:
“Over the years, Venezuelan national and local authorities have ceded ever-greater control over their territories to transnational criminal organizations, including TdA. The result is a hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States, and which poses a substantial danger to the United States.”
But the use of the authority will undoubtedly have deeply disturbing implications for countless noncitizens with no ties to that gang because, if properly invoked, it would allow Trump to bypass due process protections. So the ubiquitous legal question, once again, is: can a president do that? The short answer is: technically, probably yes. But it would be a horrific – and potentially discriminatory – abuse of power with incredibly disturbing consequences.
Shameful History
The Alien Enemies Act has a sordid and shameful history. It was enacted as one of four laws that are together known as the Alien and Sedition Acts, which also made certain kinds of political speech illegal, despite First Amendment protections (the anti-sedition laws expired or were repealed before the Supreme Court could weigh in). At the time, the US was mired in an internal political battle between then-President John Adams’s Federalist Party, which favored a strong federal government, and the opposition, known as the Democratic-Republican Party, which was led by Thomas Jefferson, who would go on to beat Adams in his re-election bid.
Historians trace the Alien Enemies Act to the Federalist Party’s hardball tactics for entrenching power. Ostensibly, it was passed in response to tensions with France. The two countries were engaged in an undeclared naval war. The Alien Enemies Act was passed to stave off espionage and subversion by the French within US borders and allowed the president to arrest, detain, and deport male noncitizens aged 14 years and older based solely on their country of origin and without so much as a deportation hearing. Unlike today, there was no national immigration law or federal national security apparatus in 1798.
The scuttle with the French passed without incident, so Adams never actually invoked the law, which applies only in times of “declared war” or when a foreign government threatens or engages in an “invasion” or “predatory incursion.” Subsequent presidents used it during the War of 1812, World War I, and World War II. America is not at war with Venezuela today, so arguably, Trump’s reliance on the Alien Enemies Act to bypass legal protections for immigrants – including the Due Process Clause of the Fifth Amendment to the US Constitution – would be a severe overreach.
But the statute also enables a president to utilize its mechanism for summary detentions and deportations if there is an “invasion” or “predatory incursion” – whatever that means.