In her compelling piece, “A little-known law from 1798 could be a key part of Trump’s deportation plans,” CNN veteran journalist Catherine Shoichet examines former President Donald Trump’s intention to leverage the Alien Enemies Act of 1798 in his proposed mass deportation initiative. Shoichet, renowned for her exceptional coverage of immigration matters, thoroughly analyzes the legal intricacies, historical context, and potential implications of implementing this age-old legislation. Her detailed investigation prompts important discussions about both the practicality and ethical considerations of such a proposal.
Understanding the 1798 Legislation
The Alien Enemies Act exists as one component within the broader Alien and Sedition Acts, enacted in 1798 during John Adams’ presidency.
During this period, widespread concerns about French influence amid an unofficial naval conflict prompted legislators to grant extensive presidential authority for the detention and deportation of citizens from hostile nations.
“The legislation emerged from anxieties surrounding the French Revolution… Its primary purpose was to suppress political dissent from French-sympathizing immigrants,” explains Mae Ngai, Columbia University’s distinguished history professor, in conversation with Shoichet. While other contemporaneous laws eventually lapsed, the Alien Enemies Act continues to remain in effect.
Trump has frequently referenced this legislation, asserting it provides the essential “tremendous authority” needed to remove those he considers threatening. During a November gathering, Trump remarked, “This is how far we had to go back, because in those days, we didn’t play games.” He specifically suggested the act could facilitate the dismantling of “every migrant criminal network operating on American soil.”
However, Shoichet’s investigation, supported by expert legal opinions, identifies substantial constitutional and practical challenges to Trump’s interpretation. While presidential powers under this law are significant during specific wartime scenarios, legal scholars concur that its application beyond such circumstances could face constitutional challenges.
Understanding the Scope of the Alien Enemies Act
The legislation specifically outlines the conditions necessary for its implementation:
- A formal declaration of war between the United States and another nation must exist, or
- A foreign government must attempt or threaten an invasion or military incursion.
- Presidential proclamation of such circumstances is mandatory.
Under these specified conditions, the law permits the detention, “restraint, security, and removal of alien enemies” from the hostile nation, as Shoichet elaborates. Historically, this legislation targeted citizens from nations officially at war with the United States, such as Germany during both World Wars.
Contemporary Application Possibilities
Shoichet presents critical perspectives from prominent legal experts, including Katherine Yon Ebright from the Brennan Center at New York University. Ebright contends that Trump’s proposed application of the law to combat gangs or cartels fundamentally misaligns with its intended purpose.
“The current situation lacks the essential elements required by the law – there’s no military invasion or predatory incursion being conducted by a legitimate foreign nation or government,” Ebright emphasizes. She further argues that using the law in this manner would constitute “an inappropriate application of wartime authority.”
Jean Lantz Reisz, who co-directs the immigration clinic at USC’s Gould School of Law, shares this assessment. She suggests Trump’s underlying motivation is procedural circumvention. “Trump appears to be invoking this legislation as a mechanism to sidestep established due process requirements and streamline arrests and deportations,” Reisz explains to Shoichet.
According to Shoichet’s analysis, deportations executed under the Alien Enemies Act would circumvent the currently overwhelmed immigration court system, where case resolutions often span multiple years. However, Reisz cautions that this strategy would likely face immediate legal opposition. While the act permits detained individuals to pursue legal action, Ebright notes that “the standard judicial review procedures would not automatically apply.”
Who Would Be Targeted?
Trump’s rhetoric consistently focuses on gang members, cartel associates, and narcotics traffickers. Yet, Shoichet’s investigation reveals a fundamental legal obstacle: these entities do not constitute foreign governments.
“There’s a clear distinction – cartel members and gang affiliates cannot be classified as foreign governments,” Reisz elaborates. She warns that attempts to categorize non-state actors as hostile foreign powers would encounter significant legal resistance.
George Fishman, formerly serving as deputy general counsel at the Department of Homeland Security, explored this perspective in a recent study. While acknowledging the law’s restricted scope, he suggests its potential application in scenarios involving “mafia states” where organized crime has deeply infiltrated governmental structures.
“A compelling case could potentially be constructed for applying the Alien Enemies Act in such circumstances,” Fishman tells Shoichet, though he concedes it would face “considerable challenges” in court.
Historical Precedent: A Troubled Legacy
Shoichet emphasizes that the Alien Enemies Act has seen only three implementations throughout U.S. history, each during formally declared wars: the War of 1812, World War I, and World War II. The most controversial application occurred during World War II, targeting German, Italian, and Japanese nationals.
Ebright underscores the law’s “controversial past,” highlighting its role in enabling nationality-based discrimination rather than addressing genuine national security threats. “The law led to the internment of over 15,000 individuals of German and Italian descent, while hundreds of thousands of non-citizens from these backgrounds faced severe restrictions,” she reveals to Shoichet.
The detentions authorized by the Alien Enemies Act were distinct from the broader internment program that affected more than 100,000 Japanese Americans, which was implemented through President Franklin D. Roosevelt’s executive order. However, Ebright emphasizes that both instances demonstrate concerning historical precedents. “This legislation should not be wielded as an instrument for targeting specific communities,” she contends.
Modern Implications: Legal and Moral Questions
While Trump’s references to the Alien Enemies Act may serve primarily as political rhetoric, Shoichet’s investigation reveals substantial complexities. Legal scholars consulted in her research concur that attempting to apply this wartime legislation during peace or against non-governmental actors would likely encounter immediate judicial challenges.
Ebright cautions about the dangerous precedent such an action might establish.
“I remain optimistic that judicial authorities will recognize the fundamental flaw in characterizing migration as an invasion, or attempting to equate non-state entities with foreign governments,” she explains to Shoichet.
George Fishman discusses additional potential applications of the legislation, such as its possible use against Iranian citizens or the removal of Chinese students during periods of diplomatic tension. However, Shoichet’s reporting indicates these scenarios remain purely hypothetical.
Repeal Efforts and Future Outlook
Several Democratic legislators, with Sen. Mazie Hirono of Hawaii at the forefront, have advocated for abolishing the Alien Enemies Act. Hirono characterizes it as “a discriminatory statute historically employed to unfairly persecute immigrant communities in the United States.” Despite these efforts, attempts at repeal have failed to gain sufficient momentum in Congress.
Shoichet’s analysis concludes by highlighting the law’s persistent presence and its potential for misuse. While Trump’s campaign messaging may resonate with his supporters, interviewed experts caution that any attempts to resurrect the Alien Enemies Act would face significant legal, moral, and historical challenges.
A Return to the Past or a Dangerous Precedent?
Catherine Shoichet’s comprehensive investigation provides readers with an in-depth understanding of the Alien Enemies Act, examining its historical implementation and contemporary legal implications. Her reporting conclusively demonstrates that utilizing a centuries-old wartime statute to address modern immigration challenges would represent an unprecedented and controversial development.
Shoichet’s investigation serves as a vital reminder about the significance of historical perspective and legal protections in immigration policy discussions. As her expert sources emphasize, the Alien Enemies Act represents both a historical artifact and a warning for contemporary policymaking.
To access Catherine Shoichet’s complete article, please click here.