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A Historian's Perspective: Trump Invokes the 1798 Alien Enemies Act. What is it, and can he do that? [1]

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Date: 2025-03-17

Over the weekend, Donald Trump invoked the Alien Enemies Act, a law passed in 1798, to justify his deportation of Venezuelan nationals allegedly involved in criminal gang activity. Given the seemingly sweeping powers this law gives the president, it’s worth considering what the law says, its origins, and whether or not it allows Trump to do what he says it allows him to do. There have been a number of statements from civil rights groups and legal organizations decrying the move. The well-respected Brennan Center for Justice, for instance, lambasted the Trump Administration’s move, saying “The Alien Enemies Act may be used only during declared wars or armed attacks by foreign governments… The president has falsely proclaimed an invasion and predatory incursion to use a law written for wartime for peacetime immigration enforcement.” So just what can Trump do, and what did the Congress that enacted the law believe they were empowering the president with?

In 1798, the United States was far from the world power it would one day become. The country still had a very rocky relationship with Great Britain, and would indeed be at war with it again in just over a decade. But of more immediate concern, Napoleon’s armies were busy conquering Europe, the French diplomat in the US, Citizen Genet, made open threats against American sovereignty, and French officials in Paris, labeled Agents X,Y, and Z in American dispatches, solicited bribes from the United States. French privateers and ultimately the French Navy itself seized American ships in the Atlantic, even at times in American waters, and a decree by the French government in 1797 essentially declared open season on American shipping and merchant vessels. It was in the face of these international events, and increasing domestic political pressures at home, that Congress in 1798 passed a series of four laws that would become known as the Alien and Sedition Acts. Intended to shore up national defense and provide for increased domestic protections in the face of impending hostilities, the Alien Enemies Act is one of these laws, but it is necessary to consider its relationship with the others to understand its intent.

The Alien Enemies Act was surprisingly not nearly as controversial as the other three laws. While the other three faced intense debate in Congress, and even more intense debate in the press, the Alien Enemies Act did not stir nearly as much contention as the others. The Federalist Party that controlled Congress and the Presidency was seen by the opposition Democratic-Republican Party as pushing through the first two Alien Acts and the Sedition Act as weapons to stifle dissent, to punish their political enemies, and to increase their own power. The powers these other three laws granted the president and the federal government existed apart from any precondition of armed conflict or anticipated hostilities. Among various provisions, they increased the period of residency for immigrants to become citizens from five to fourteen years (most new immigrants were believed to be drawn more to the Democratic-Republicans than the Federalists), allowed people making open threats and attacks on the legitimacy of the federal government and its officers to be jailed, and gave the president powers to expel virtually any non-citizen at any time for any reason.

These were truly frightening powers. And within five years, each of them was either repealed or allowed to expire. But the Alien Enemies Act was allowed to remain. What made it different? The Alien Enemies Act, unlike the others, specified the president’s powers of deportation were contingent upon

a declared war between the United States and any foreign nation or government, or any invasion or predatory incur- sion [that] shall be perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government.

Contrast this explicitly with the Alien Friends Act, one of the other three Alien and Sedition Acts, which allowed the president to order the deportation of “all aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are involved in any treasonable or secret machinations against the government thereof.” Unlike the Alien Enemies Act, there is no limiting factor, FULL STOP.

The Alien Enemies Act cannot reasonably be construed to allow a president to invoke their deportation powers without at least the threat of hostilities between the United States and a foreign power, and specifies that aliens subject to the jurisdiction of the Act must be nationals of a foreign power hostile to the United States. Why? Because the Alien Friends Act, passed just eleven days earlier, provides the president with the power to deport anyone without the threat of open hostilities between the United States and that foreign national’s country. If the Alien Enemies Act meant what the Trump Administration says it does, that the president can order the deportation of anyone it deems a threat, there would have been no reason to pass it in the first place, because that law already existed and in fact had been passed less than two weeks earlier! There is no rational interpretation of the Alien Enemies Act that does not require the precondition of at least a threat of hostilities between the United States and the country that a foreign national belongs to.

Would you like more evidence the Trump Administration is badly misinterpreting and misusing this law? Well, there is plenty. As I stated earlier, the Federalist Party that introduced and passed the Alien and Sedition Acts was widely seen at the time as doing so to politically damage and hamstring the electoral prospects of the opposition Democratic-Republicans. Of the four Alien and Sedition Acts that were passed during the summer of 1798, three were hotly debated and contested, with the Democratic Republicans accusing the Federalists of a myriad of constitutional faux pas and political shenanigans. But one of the four was largely acknowledged by even the Democratic-Republicans as a legitimate power for the president to exercise. Which one, you may ask? The Alien Enemies Act, of course. The Annals of Congress record very little debate over the Alien Enemies Act, as opposed to heated dissent over the others. In fact, many Congressmen who vehemently opposed the other three Alien and Sedition Acts, such as Albert Gallatin, Thomas Jefferson’s future Secretary of the Treasury and leading statesman, stated plainly that the president likely had these powers during wartime as Commander in Chief.

For those of you still not convinced, I should not fail to mention that of the four Alien and Sedition Acts, three were either allowed to expire or were repealed just a few short years later as soon as the Democratic-Republican Party gained control of Congress and the White House. The one that was not? You guessed it— the Alien Enemies Act. The Act that gave the president unchecked power to deport any alien deemed dangerous at any time was allowed to expire, while the Act that allowed the president to deport aliens allied with a hostile foreign government during times of war or hostilities was allowed to remain. If you are looking for any evidence that the Alien Enemies Act imposes qualifications on the president’s ability to order deportations, there you have it.

The Brennan Center is absolutely right—the president has “falsely claimed an invasion.” There are too many examples of the Trump Administration deliberately misinterpreting or misapplying laws to further its own ends. It is no surprise that they are doing the same here. Like so many actions of this administration, this too is likely to end up in front of the Supreme Court. Considering the oft-stated judicial philosophies of textualism and originalism espoused by the members of the conservative bloc of SCOTUS (that the plain text of a law and the original intent of those who passed the law should be the most significant- possibly only- factors deciding a case), the case could not be any more clear that the Alien Enemies Act simply does not give Trump the powers to do what he says it does. But we also know that Republican partisans in the Age of Trump, and that certainly includes several justices of the Supreme Court, are not honest actors. They will twist laws to mean what they want them to mean, so they can do as it suits them. I imagine that, when this comes before the Supreme Court, the outcome will hinge upon Trump’s declaration that we are being invaded by hostile powers (when in fact, the migrants coming into the United States are generally fleeing their country of origin). SCOTUS will declare that the president gets to make that determination, and that therefore he can legally deport anyone he pleases.

As the days go by, and the egregious acts of this administration continue to pile up, it is getting harder and harder to grasp for optimism, knowing that we are right, but failing nonetheless.

-Peter Porcupine

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