Michael Waldman
BRENNAN CENTER FOR JUSTICE at NYU: The Briefing
October 15, 2024
In 1798, Congress passed the Alien and Sedition Acts. These laws criminalized dissent, abused civil liberties, and violated the Constitution. They are among the most notorious laws in history. One is still on the books, the Alien Enemies Act of 1798.
The law has only been used three times: During the War of 1812. During World War I. And most notoriously, to imprison tens of thousands of innocent noncitizens of Japanese, German, and Italian descent in internment camps during World War II.
Thomas Jefferson decried the Alien and Sedition Acts as part of a “reign of witches.” Recently, Donald Trump called the last of these laws something else. Let’s call it Project 1798.
This past weekend, Trump pledged to launch “Operation Aurora,” a plan to deploy the military on U.S. soil to seize, detain, and deport immigrants he deems dangerous. “Can you imagine? Those were the old days when they had tough politicians, have to go back that long,” he told a rally on Saturday. “Think of that, 1798. Oh, it's a powerful act. You couldn't pass something like that today.”
To be clear, such a step would be illegal. As my colleague Katherine Yon Ebright notes in her comprehensive review of the law, it can only be used when there is “a declared war between the United States and any foreign nation or government,” or where a government has militarily invaded the country. It’s a wartime statute, as the Supreme Court has confirmed, that allows presidents to detain or deport the natives and citizens of an enemy nation.
This would violate basic civil liberties, and one hopes that courts would uphold the Bill of Rights. But the Supreme Court previously refused to step in to police postwar uses of the law, reasoning that the continued existence of a war was a “political” question beyond the purview of judges. And that was a Court with a reasonable track record for integrity. Let’s get real: Should we trust this Supreme Court to stand up for the rule of law and strike down a peacetime abuse of the Alien Enemies Act?
Congress should repeal the Alien Enemies Act. That is a step that should have been taken long ago. And there are other dusty and little-used statutes that could be abused by an aggressive president. Too often, we rely on presidential self-restraint rather than enforceable protections for the public.
The Insurrection Act dates back to 1807. A president last used it to send troops to quell violence in Los Angeles more than three decades ago. Trump has vowed to use it as part of his mass deportation scheme. As the Brennan Center has documented, there are few guardrails to prevent a president from abusing this law.
The National Emergencies Act allows a president to declare an emergency, with few guideposts, and grants extraordinary power when that happens. It is appropriately used when there is, well, an emergency — a terrorist attack or a massive electrical grid failure, for example. It should not be invoked to pursue policy goals such as those around immigration.
A bipartisan group of lawmakers understands the risks. Last month, two congressional committees backed reform legislation that would require Congress to approve an emergency declaration within 30 days. Presidents could act with dispatch, but the Constitution’s checks and balances would stay strong too.
All these laws, so subject to abuse, are often at the heart of the worst episodes in American history. The eminent historian Gordon Wood, writing in the Oxford History of the United States, called the Alien and Sedition Acts a “disastrous mistake” that “thoroughly destroyed the Federalists’ historical reputation.” More than two centuries later, Congress has an opportunity to end the disgrace.