Alien Enemies Act: Unconstitutional Overreach?

The Alien Enemies Act of 1798 is a wartime law that permits the U.S. President to detain or deport citizens of an enemy nation without due process and based solely on their country of birth or citizenship. While the Act has been invoked only three times in history during major conflicts, critics argue that it violates constitutional rights, particularly equal protection and due process, and is subject to abuse. This article will explore the Act's constitutionality, its impact on civil liberties, and its potential for misuse in the context of modern national security challenges.

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The Alien Enemies Act of 1798 violates the US Constitution's guarantees of equal protection and due process

The Alien Enemies Act of 1798, officially "An Act Respecting Alien Enemies", was passed as a wartime authority to supplement the Alien Friends Act. It grants the president the power to detain, relocate, or deport the natives and citizens of an "enemy" nation with little to no due process. The Act has been invoked only four times in history, during major conflicts: the War of 1812, World War I, World War II, and in 2025 by President Trump, who cited it as his authority for the deportation of non-citizens engaged in what he called an organised criminal gang "invasion".

The Act raises serious concerns about the US Constitution's guarantees of equal protection and due process. The Fifth Amendment protects US citizens and immigrants against discrimination and rights violations. The Act has been criticised for violating the First Amendment right to free speech and for being an encroachment of federal power upon the powers of Congress and the judiciary. The Act also raises concerns under US laws implementing the 1967 Refugee Protocol and the Convention Against Torture.

The Act allows the president to target immigrants without a hearing, based solely on their country of birth or citizenship. This means that immigrants who are lawfully present in the US and have shown no signs of disloyalty can be detained or deported. The Supreme Court and past presidents have acknowledged that the Act is a wartime authority enacted and implemented under the war power. However, the Act may violate constitutional rights in wartime and is subject to abuse in peacetime.

The Act has been challenged in court several times, with varying outcomes. In 2025, a US District Court judge temporarily blocked Trump's attempt to use the Act to deport Venezuelan suspected gang members. However, the US Supreme Court later vacated the temporary restraining order, ruling that the plaintiffs must bring the lawsuit in Texas, where they were being held. The court also required the government to provide sufficient notice to the plaintiffs and an opportunity to challenge their deportation.

The Act infringes on the First Amendment right to free speech

The Alien and Sedition Acts of 1798 were a set of four United States statutes that sought to restrict immigration and limit First Amendment protections for freedom of speech. The Acts were passed by a Federalist-controlled Congress in preparation for an anticipated war with France. The Alien Enemies Act, which is part of the Alien and Sedition Acts, granted the President powers of detention and deportation of foreigners in wartime or in the face of a threatened invasion.

The Acts tightened restrictions on foreign-born Americans and limited speech critical of the government. The Sedition Act made it a crime for American citizens to "print, utter, or publish...any false, scandalous, and malicious writing" about the government. The Act was used to suppress speech critical of the Adams administration, including the prosecution and conviction of many Jeffersonian newspaper owners who disagreed with the Federalist Party.

The Democratic-Republican minority in Congress complained that the Sedition Act violated the First Amendment to the Constitution, which protected freedom of speech and freedom of the press. They argued that the Act stifled legitimate criticism of the government, shutting down freedom of speech and the press. The Jeffersonian-Republicans admitted that some party newspapers would criticize and abuse the government, but this was the price of open debate in a free society.

The Alien Enemies Act also discriminates against immigrants based on their country of citizenship and, more broadly, based on their ancestry. The Act covers not only the citizens of a foreign belligerent but also the “natives”—or individuals who were born in the enemy state but renounced their citizenship and no longer owe allegiance to that state. This focus on birth heritage and the conflation of ancestry with disloyalty in wartime is apparent in the text of the law and its history.

The Act was used to target immigrants with German, Austro-Hungarian, Japanese, and Italian heritage during World Wars I and II

The Alien Enemies Act, passed in 1798, was enacted in preparation for an anticipated war with France. At the time, the United States had no immigration law, and the criminal law was still in its infancy. The Act allows the President to detain or deport the citizens of an enemy nation with little to no due process. This means that the President can target immigrants without a hearing, based solely on their country of birth or citizenship.

The Act has been invoked three times, during the War of 1812, World War I, and World War II. During World Wars I and II, the Act was used to target immigrants with German, Austro-Hungarian, Japanese, and Italian heritage. These individuals were subject to detention, expulsion, and restrictions based solely on their ancestry. The Act was a key authority behind these actions, as it allowed the President to conflate ancestry with disloyalty in wartime.

The broad scope of the Act has raised concerns about potential violations of constitutional rights, specifically those of equal protection and due process. The Act has been criticised as an overbroad authority that may be subject to abuse in peacetime. In the modern era, there is no plausible argument that relying on identity-based measures like internment or expulsion under the Alien Enemies Act is necessary, even in wartime.

The Act's constitutionality has been challenged in court, with a federal judge ruling that President Trump unlawfully invoked the Act to speed up the deportation of alleged members of a Venezuelan gang. The judge asserted that Trump did not have the authority to unilaterally define the conditions for invoking the Act and that his actions exceeded the scope of the statute.

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The Act has been invoked to conduct mass deportations with little to no due process

The Alien Enemies Act of 1798 is a wartime authority that allows the President to detain or deport the natives and citizens of an "enemy" nation with little to no due process. The Act has been invoked only three times in history, each time during a major conflict: the War of 1812, World War I, and World War II.

The Act permits the President to target these immigrants without a hearing and based solely on their country of birth or citizenship. Although the law was enacted to prevent foreign espionage and sabotage during wartime, it has been used against immigrants who have committed no wrongdoing, shown no signs of disloyalty, and are lawfully present in the United States. This raises serious concerns about violations of constitutional rights, specifically equal protection and due process.

The Act was invoked by President Trump in 2025 to expedite the deportation of non-citizens involved in what he described as an organised criminal gang "invasion" of the United States. Trump's executive order authorised the deportation of Venezuelan suspected gang members to El Salvador, where they would be subject to indefinite detention. This use of the Act was temporarily blocked by a US District Court judge, who ruled that the government must provide sufficient notice to the plaintiffs and an opportunity to challenge their deportation.

The Alien Enemies Act has been criticised as an encroachment of federal executive power on the powers of Congress and the judiciary, and a violation of the First Amendment right to free speech. Protests occurred across the country, with critics denouncing the Act as unconstitutional. The Act's constitutionality seems clear now, but at the time, the nation was in an undeclared war with France, and there was a "'rampant fear of the enemy within'".

The Act remains in effect today, and Congress has the power to repeal it to prevent or stop its abuse.

The Act was passed in preparation for an anticipated war with France

The Alien Enemies Act of 1798 was passed in preparation for an anticipated war with France. The United States was on the brink of war with France in 1798, and the Act was one of four United States statutes known collectively as the Alien and Sedition Acts. These laws aimed to restrict immigration and limit freedom of speech, particularly targeting criticism of the government.

The Alien Enemies Act granted the president the power to detain or deport the citizens of an enemy nation, or those from a foreign enemy country, without a hearing. This included the arrest, relocation, and deportation of any male over the age of 14 who was not a naturalized citizen of the United States. The Act also provided some legal protections for those subject to it.

The Act was endorsed by the Federalist Party of President John Adams, who was facing a developing dispute with the French Republic. Federalists believed that criticism from Democratic-Republicans was disloyal and feared that non-citizens living in the United States would sympathize with the French during a war. The prosecution of journalists under the Sedition Act contributed to the success of the Democratic-Republicans in the 1800 elections.

The Alien Enemies Act has been invoked three times during major conflicts: the War of 1812, World War I, and World War II. In the latter two wars, the Act was used to target German, Austro-Hungarian, Japanese, and Italian immigrants based solely on their ancestry. The Act was also invoked by President James Madison during the War of 1812 against British nationals, and they were ordered to report to local authorities.

While the Act grants the president significant authority during wartime, it has also been criticised for its potential to violate constitutional rights and its susceptibility to abuse, particularly in peacetime.

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