How the Alien Enemies Act of 1798 Is Being Used Today

The Alien Enemies Act of 1798 enables a U.S. president to detain, relocate, or deport immigrants who are here from an enemy country without due process of the law. The act permits the president to target immigrants based only on their country of birth or citizenship.

Until President Donald Trump’s recent actions, the Alien Enemies Act was used three times, only during wartime: The War of 1812, World War I, and World War II. Detainment, relocation, and deportation under the Alien Enemies Act do not require the country to be at war, but this is the first time it has been implemented during peacetime. A president can invoke the act if they believe certain foreign nationals are deemed a threat to national security.

The attorneys of Scott D. Pollock & Associates, P.C., stay current on the administration’s immigration actions and are here to answer your questions.

Alien Sedition Acts History

The Alien Enemies Act was part of The Alien Sedition Acts of 1798. The acts were passed in anticipation of a war with France, which did not occur.

These historical U.S. immigration laws were enacted under President John Adams and created by The Federalist Party. At the time, the Federalist Party controlled Congress and believed in a strong central government.

The act consisted of four laws:

1. Naturalization Act. Increased the U.S. citizenship residency requirement from five to 14 years. This act was enacted to limit the number of immigrants who could vote and participate in the political process. (Repealed in 1802.)
2. Alien Friends Act. Granted the president authority to deport any non-citizen deemed dangerous to the safety of the United States. (Expired in 1801.)
3. Sedition Act. Criminalized anyone, including U.S. citizens, who spoke against the president or the government. (Expired in 1801.)
4. Alien Enemies Act. Permits the government to arrest and deport citizens of an enemy nation during wartime. Immigrant groups can also be detained or deported during peacetime if they are suspected of plotting against the government. (Still in effect.)

The most controversial use of the Alien Enemies Act was during World War II to create Japanese Internment Camps.

Japanese Internment Camps and Immigration Law

Following the attack on Pearl Harbor during World War II, President Franklin D. Roosevelt used the Alien Enemies Act as the basis for Executive Order 9066. This order authorized the relocation and internment of Japanese Americans. The vast majority of those affected were Japanese, but German, Italian, and Jewish refugees were also placed in internment camps.

Japanese people in America faced discrimination from the time they began arriving in the United States. Before the internment camps, U.S. immigration law already restricted the number of immigrants of Asian descent who could come to the United States. In fact, immigration laws prohibited Japanese people from gaining citizenship until 1952, and restrictions on national origin quotas were not repealed until 1965.

Presidential Powers and Immigrant Deportation

President Trump’s recent use of the Alien Enemies Act is a stark reminder of the act’s contemporary relevance. It was invoked to support the deportation of accused Venezuelan gang members who pose a threat to the U.S. This is the first time the act has been used against an immigrant group while the U.S. is not at war.

Presidential powers regarding immigrant deportation are limited. Powers include:

• The authority to enforce and issue orders to guide the enforcement of immigration laws (Article II of the Constitution)
• Suspending or restricting entry of foreign nationals deemed a threat to national security (Immigration and Nationality Act, or NIA)
• Detaining or deporting foreign nationals of a hostile nation during wartime, armed conflict, or if suspected of plotting against the government (Alien Enemies Act of 1798)

Presidential powers regarding immigrant deportation have limits, including:

• Only Congress can rewrite and create new immigration laws.
• Courts can block or overturn executive actions.
• Non-citizens usually have a right to due process, such as a hearing before deportation.

Immigration Policy and National Security

Immigration policies are often created and shaped to maintain national security. National security is protected through policies that help to ensure individuals with terrorist ties, criminal ties, or who threaten national security in any way are not let into the U.S. The Alien Enemies Act was an immigration policy created with the intent to uphold national security.

While national security is a focus, immigration policies are also shaped by economic and humanitarian goals. Many policies focus on the need for skilled or seasonal labor, helping refugees, and allowing for family reunification.

Legal Challenges to the Alien Enemies Act

Over the years, there have been legal challenges to the Alien Enemies Act, including that:

• The act violates due process by allowing the detention and deportation of immigrants without a hearing.
• The act is applied based only on nationality and not individual wrongdoings.
• The act is an overreach of executive power and has the potential for abuse.
• The act is outdated since immigration laws and humanitarian standards have changed.

These legal challenges are currently in the spotlight as a response to President Trump’s controversial deportation of hundreds of Venezuelans.

Current Legal Challenge

President Trump recently used the Alien Enemies Act to deport Venezuelan migrants suspected of being members of the Tren de Aragua gang.

A federal judge issued a restraining order to block the act temporarily. Still, the administration was already flying those arrested to a prison in El Salvador and claimed the planes could not be turned around.

A few weeks later, the Supreme Court ruled that using the act was legal but that individuals were entitled to judicial review. Venezuelans still in U.S. custody now have the option to file for individual rulings, but it is unclear if this will be the case for those already deported. Reports show that at least one individual on this flight had no Venezuelan gang ties.

Help in Uncertain Times

Scott D. Pollock & Associates, P.C., stays current on immigration issues. Breaking immigration news occurs quickly, and we are committed to ensuring our clients receive sound and knowledgeable legal services and advice.

We are tracking whether the Alien Enemies Act of 1798 will affect other groups of foreign nationals. Contact us if you are concerned about the detainment, relocation, or deportation of yourself or a loved one.