How Trump Will Use the Alien Enemies Act of 1798
It's a single tool in the xenophobic toolbox.
Among the buffet of right-wing grievances nestled in President Trump’s second inaugural address was a list of ways in which he’ll punish immigrants. They included, but are not limited to:
Declaring a national emergency at the Southern Border,
Naming drug cartels as foreign terrorist organizations, and
Invoking the Alien Enemies Act of 1798.
The last is the one I find most troubling. Built off Trump’s other threats, most notably his pledge to end birthright citizenship, this outdated authoritarian act will be the White Supremacist coup de grâce, empowering the administration to remove legal, non-White, non-criminal residents under the faux threat of an immigrant “invasion.”
A Dumb Law Written by Syphilis-Ridden Slavers…
Part of the broader package of 18th-century laws known as the Alien and Sedition Acts, the Alien Enemies Act of 1798 gives the President the right to “apprehend, restrain, secure, and remove” citizens of nations the U.S. is at war with.1 The law applies to those who are legally in the U.S. but are not American citizens, such as those on a green card or visa holders, legal immigrants, or nonresident alien spouses. It requires no conviction nor suspicion of criminal activity. A person could have lived in America their whole lives, but if they were born in a country the President is mad at, off to the concentration camp they go — no trial, no due process. This is to protect freedom and liberty, of course.
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President of the United States shall make a public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies.” — An Act Respecting Alien Enemies
While any honest reader would interpret the above text as granting the President the power to arrest citizens of countries Congress has declared war against, or one who has just sent an army across our border (“invasion or predatory incursion”), the law has a history of lenient interpretation. It goes without saying legal vagueness will be Trump’s lubricant for the top of the slope, getting it nice and slippery so America can dive head-first into the dark valley below.
Both President Woodrow Wilson and Harry Truman enforced the Act long after the ends of World War I and World War II, respectively. In the 1948 Supreme Court case Ludecke v. Watkins, the Court granted the President’s power under the Act are not limited to when America’s army stop shooting.2 In other words, “war” is a vibe, and the Chief Executive gets to determine when his increased war powers end. (This is a great idea with zero chance of backfiring. Don’t open a history book, just trust me.)
“War does not cease with a cease-fire order, and power to be exercised by the President such as that conferred by the Act of 1798 is a process which begins when war is declared but is not exhausted when the shooting stops.” — Decision in Ludecke v. Watkins
Unfortunately, the notion of an immigrant “invasion” has appeared in high-profile judicial cases before. In the 1997 case State of California v. United States, California sued the federal government, claiming the Clinton administration was “failing to stop the invasion of illegal aliens across the State’s borders.” The Ninth Circuit upheld a lower court’s decision to throw out California’s suit, but the manner in which it did so left an opening for xenophobes of the future. The Court dismissed the claim on the grounds that the political branches — i.e. the President and Congress — should determine when there is an “invasion,” not the Judiciary.3
“For this Court to determine that the United States has been "invaded" when the political branches have made no such determination would disregard the constitutional duties that are the specific responsibility of other branches of government, and would result in the Court making an ineffective non-judicial policy decision… Additionally, even if the issue were properly within the Court's constitutional responsibility, there are no manageable standards to ascertain whether or when an influx of illegal immigrants should be said to constitute an invasion.” — State of California v. United States (1997)
While the ninth circuit rejected the invasion clause at the time, we see how this language could be used by Trump. In conjunction with the two other anti-immigrant legislative weapons noted in his speech, Trump will use this opening to implement the most anti-immigrant, White Supremacist political agenda of the 21st century.
… And How It Will Be Used By Syphilis-Ridden Politicians.
While the established judicial precedents aren’t one-to-one for what Trump wants to do, they don’t need to be. The greatest victory of the conservative movement was not the election of Trump (or any other President), but the half-century project to capture the American judiciary. Following the Warren Court of the 1950s’ and 60s’, which dared to rule that Constitutional rights applied to Black people, conservative forces united to reshape the courts according to their ideological preferences. After a half century of relentless organizing from The Heritage Foundation and The Federalist Society, the modern U.S. Supreme Court is a purely reactionary body, ready and willing to rule that the 2025 Republican Party Agenda is coincidentally exactly what the founders wanted. Here’s how I feel Trump’s plan will go:
First will be the declarations. With a national emergency at the border and drug cartels labelled terrorist organizations, the Trump Administration will create the impression that the United States is at war. With who? Well, that depends. If unlike Supreme Court Justice Sam Alito, your brain hasn’t been fried by Newsmax, you’ll rightfully conclude the U.S. is at war with no one. Drug cartels are bad, but they’re certainly not armies of Latin American states. But if you’re MAGA-pilled, you’ll think we’re at war with Spanish-speaking Brown people — cartels, Latin American governments, legal residents, undocumented immigrants, your noisy neighbor, etc. etc. We know exactly how this will play out, as its the War on Terror playback with a find-and-replace switching “Muslim” for “Immigrant.” Take for example Thomas Friedman, who, after years of arguing the Iraq War was the smart thing to do, told Charlie Rose it was actually about punishing “the Muslim world” for 9/11. This is pretty much what will happen with Trump’s xenophobic war: the enemy will be vague, because you can’t just say “I want to punish X ethnicity so Americans feel good.” (That said, who knows what they’ll be saying four years from now.)
Second will be the deportations. Trump has already promised mass ICE raids across America on Tuesday morning. If Jesse Waters is to be believed, Chicago will be primary target.
While Trump needs no excuse to deport undocumented immigrants, it is very clear his administration will be capturing legal residents as well. During his previous presidential campaigns, Trump promised to put a “giant door” is his envisioned Mexico border wall, a small caveat to position his policies as anti-illegal immigration as opposed to xenophobic. But this time around, even the small pretenses have been dropped in favor of blatant anti-immigrant policies, legal and otherwise. Just twenty minutes after his inauguration, Trump shut down the CBP One app, cancelling appointments for immigrant-hopefuls who had waited months (and sometimes years) to enter the United States. These appointments were scheduled after applicants had surrendered their biometric, biographical, and personal information to the government as part of the legal immigration process. The videos of those affected are horrifying.
The third step will be the Kangaroo Supreme Court battles that give Trump the rubber stamp he needs to eliminate any official opposition to his agenda. Inevitably, someone will sue Trump’s deportation regime and the case will rise to the Supreme Court. Using State of California v. United States as a justification, the Trump administration will argue that his election will be the “political branches” determining their is an immigrant “invasion,” affording him the full powers of the 1798 Alien Enemies Act. Additionally, the language of war, such as a national border emergency or terrorist cartels, will aid this campaign. I wouldn’t be surprised if Sam Alito and Clarence Thomas are rock-paper-shooting over which of the them will get to author the decision, which was pre-written by their clerks months ago.
Granted the Court’s recent overturning of Roe v. Wade has shown the justices respect neither the Constitution nor themselves, it’s likely they’ll agree Trump has the power to end birthright citizenship. Perhaps one conservative Supreme Court justice will show a bit of spine (which I doubt) and turn the Court to a 5-4 decision blocking his move, but Trump will probably ignore them in the fashion attributed to President Andrew Jackson: “The Court has made its decision. Now, let them try and enforce in.”
Once birthright citizenry is stripped, legal residents who are of Latin American descent, but no longer an American citizen will be eligible to be “removed” under Trump’s Alien Enemies Act power. After all, they’re now part of the “invasion” he made up.
This is of course, my interpretation of Trump’s statements and a prediction of his plans. Hopefully, I am dead wrong. I would welcome a day in which reactionaries can repost this article and mock me of Trump Derangement Syndrome, imagining a dictator when all Trump really was is a standard Republican President. But that is my point. There’s lots of discourse about whether Trump will go full fascist and declare himself America’s King. Without downplaying his authoritarian desires, as we see, Trump doesn’t need to be a king to enact his reactionary agenda — he simply has to continue the path America is on. While Trump is likely to accelerate deportations and generally make life shittier for immigrants, Latinos, and a lot of other people, the xenophobia he thrives off of is not new. It’s as American as racism and apple pie. Given our colonial nature has put us in perpetual friction with our neighbors, anti-immigrant sentiment is as old as the country itself. Trump isn’t the first to cite a two-hundred year old law, and he won’t be the last. That is why resistance to Donald Trump can’t just be an anti-Donald Trump movement. This was tried in 2016, and he’s right back in office. It must attack America’s longstanding racism and anti-immigrant sentiments with a working-class message that shows the majority of the American population their enemy arrives by limousine, not immigrant caravans.
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Take care of yourself. In Solidarity — Joe
https://www.presidency.ucsb.edu/documents/proclamation-2662-removal-alien-enemies
https://supreme.justia.com/cases/federal/us/335/160/
https://casetext.com/case/state-of-california-v-united-states-8
Every article like this should mention that we have many more democratic state governors and governments than 2016. Trump's ability to enact horrifying plans like those laid out here is contingent on California, Illinois, Massachusetts, etc. letting him. It would create a crisis of federalism if these states coordinated and/or actively disrupted federal agents and actions - that crisis is worth creating. We are only helplessly at the whims of Trump and his court if our leaders choose to be.
I feel like you're being unnecessarily harsh on syphilis here, isn't it much more likely our current elected officials have other STIs? Or is there a resurgence of syphilis like there is of gonorrhea? I feel like tertiary syphilis is an excuse these assholes don't have. Certainly the folks writing the order in 1798 may have had it though.