Will the Alien Enemies Act make a comeback in a second Trump term?

New York Times columnist Jamelle Bouie recently recounted that last October, Republican presidential candidate Donald Trump vowed on X that if elected he will invoke the 1798 Alien Enemies Act to “liberate” the country from immigrants once and for all. In Trump’s words, “…we will put these vicious and bloodthirsty criminals in jail or kick them the hell OUT OF OUR COUNTRY.”   

It was a neck-snapping flashback to my college government and history courses in which the Alien and Sedition Acts of 1798, under President John Adams, were depicted as a huge blot on our country’s civil liberty tenets. Unfortunately, however, I had forgotten the circumstances which prompted these enactments.  

This column is not primarily about Donald Trump’s views on immigration. Those have been amply documented elsewhere. Instead, it is a summary of what led to President John Adams and his Federalist majorities in Congress to target foreign nationals in the U.S.

At the heart of the 1798 legislative kerfuffle was the raging war between Great Britain and France and the very real prospect the U.S. would be drawn into the conflict. The biggest worry of Adams’s Federalists was that Thomas Jefferson’s Republicans would side with the French revolutionaries who had overthrown the monarchy in 1789. The greatest internal threat, as the Federalists saw it, were the estimated 25,000 Frenchmen in this country who had fled their homeland to take refuge in the U.S.   

Additionally, there were huge numbers of the “wild Irish” who had fled to America in the wake of their 1798 rebellion against the British. These Irish comprised an estimated 25 percent of the population of Philadelphia, which was still this country’s temporary capital.  

The Federalists in Congress sprang into action to pass laws to discourage and punish any actions by such foreign nationals who might pose a clear and present danger to the stability of the country. While Adams is widely credited (or criticized) for the enactment of the alien measures, his biographer David McCullough explains that that “Adams had not asked for or encouraged” the extreme measures, though he willingly signed them into law when they reached his desk.  

The legislative impetus and language originated with individual Federalist members of Congress. Briefly, there were four laws. First was the Naturalization Act,” which raised the residency requirements for citizenship from five to 14 years. Second, “the Alien Friends Act” empowered the president to deport any non-citizen suspected of “treasonable or secret machinations against the government.”

Third, “the Alien Enemies Act” empowered the president to deport all “natives, citizens, denizens, or subjects of the hostile nation.” Finally, “The Sedition Act” made it a crime to publish or utter “false, scandalous and malicious…writings against the government…or to aid, encourage or abet any hostile designs of any foreign nation against the United States.” 

Two of the four acts were allowed to expire following Adams’s 1800 defeat by Jefferson, who was his vice president. A third law was repealed by Jefferson with the aid of his newly elected Republican majorities in both houses. Only the Alien Enemies Act remained on the books.   

Two things should be understood about the Alien Enemies Act. First, it can only be operable when there is a “declared war between the United States and any foreign nation or government.” The act was not triggered when enacted because the U.S. maintained its neutrality throughout the war between Britain and France.

Second, the legislation authorized the president to “make public proclamation” of his intent to apprehend, restrain, secure and remove foreign male nationals aged 14 and over (since amended in 1918 to include women) as enemy aliens, whether or not they were present in the U.S. legally.

The act has been invoked only three times over the last two- and a quarter centuries: in the War of 1812 against Britain, in World War I and in World War II — the latter being the last war declared by Congress. 

The Alien Enemies Act was used to during World War II to arrest and detain in internment camps or military facilities more than 30,000 suspected enemy aliens in the U.S. from Italy and Nazi Germany. The more outrageous occurrence was the internment of over 100,000 ethnic Japanese. But approximately two-thirds of these were U.S. citizens, who therefore had to be detained under different legal authorities than the Alien Enemies Act.

Even if Trump’s threat to utilize the 1798 law to round-up and either detain or deport immigrants, the task would be a hugely costly, litigious and prolonged. Moreover, he would be challenged in the courts that the U.S. is not now engaged in a declared war and the president has no authority under the Constitution to unilaterally declare war on other nations.  

Several experts have pointed out that the president already has authority to expel undocumented aliens, war or no war, and need not invoke the Alien Enemies Act. So why would he want to jump through all the extra hoops? And even then, it still comes down to the bottom-line question: “Where’s the money?”  

Don Wolfensberger is a 28-year congressional staff veteran culminating as chief-of-staff of the House Rules Committee in 1997. He is author of, “Congress and the People: Deliberative Democracy on Trial” (2000), and, “Changing Cultures in Congress: From Fair Play to Power Plays” (2018). The views expressed are solely his own.