What comes to mind when you hear “alien enemies?” Hostile green creatures, Klingons threatening the Starship Enterprise, or – French people?

Congress passed the Alien Enemies Act in 1798 during a US “quasi war” with France (naval hostilities that were never officially declared as war). Enacted during a time of fierce anti-French sentiment and fear of espionage and sabotage, the Act granted sweeping power to the president to detain and deport non-natives. This law, together with three other acts, formed the Alien and Sedition Acts.

Even amidst 18th Century anti- French hysteria, the laws were controversial. Three of the four acts were quickly repealed or allowed to sunset. But the Alien Enemies Act remains in effect to this day. Why should we care? Because today anti-immigrant sentiment runs high, and incoming Presi- dent Trump campaigned on promises to use the Act to detain undocumented immigrants and carry out mass deportations.

The Act states: “Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, re- strained, secured, and removed as alien enemies.”

The Alien Enemies Act has only been used three times. During the War of 1812, President Madison used it to require British nationals to report extensive information about themselves to the government. During World War I, President Wilson used the Act (newly amended to include women as well as men as “alien enemies”) to register hundreds of thousands of German nationals, and to place several thousand in internment camps – in some cases up to two years after fighting had ended. During WWII, President Roosevelt used the Act to detain and/or deport thou- sands of German, Italian, and Japanese nationals (Executive Order 9066 and military orders were used to incarcerate Japanese American US citizens). Despite lacking connection or loyalty to a former homeland (even German Jews who had fled Germany were included) noncitizens were treated as “alien enemies” based on national origin.

If President Trump attempts to use the Alien Enemies Act to achieve mass deportations, he will of course face vigorous challenges. The Act refers to a “declared war” and has only been invoked during wartime. With its lack of procedural safeguards concerning detention or deportation, the 1798 Act runs counter to established principles of due process and equal protection, and it conflicts with modern immigration law.

And yet…

The Act also refers to an attempted or threatened “invasion or predatory incursion” by a foreign nation or government. The President has described undocumented immigration as an “invasion,” perhaps laying the ground- work to use the Act during peacetime. The state of Texas did this in its clash with the Biden Administration, arguing that unlawful immigration constitutes an “invasion” allowing the state to use extraordinary measures. Several judges declined to decide whether an “invasion” had occurred, viewing this as a “political question” for the executive branch, not the judicial branch, under the doctrine established by the US Supreme Court in Baker v. Carr (1962). The potential thus exists for the judiciary to stand down when a president creates a pretext for using the Alien Enemies Act. For a deeper dive into this issue, the Brennan Center for Justice has an excellent legal analysis on its website: The Alien Enemies Act | Bren- nan Center for Justice.

The sweeping powers granted by the Act may appeal to politicians who wish to detain and remove immigrants while bypassing hearings or other legal protections. If people can be treated as foreign enemies based on national origin, then due process, habeas corpus and other protections under domestic and international laws may be denied in the name of national security.

In 2023, Senator Mazie Hirano and Rep. Ilhan Omar reintroduced their “Neighbors Not Enemies” Act (SB 1747/ HR 3610) to repeal the Alien Enemies Act (as of this writing, three Washington representatives have signed on). Politicians will still have other deportation tools at their disposal, but repeal of the Alien Enemies Act will protect immigrants from the abusive power of an 18th Century law -- so that we remain a nation of neighbors, not enemies.