The Alien Enemies Act is a war power granted to the president that has only been used four times in US history since its creation in 1798. It allows the president to order the detention and deportation of noncitizens from "enemy" nations during war, invasion, or predatory incursion. When it was created, the US had a very different understanding of Constitutional rights, including due process, than we do today. We talk about how the Alien Enemies Act has been used throughout history, and how Constitutional law has evolved since 1798.
Helping us out is Liza Goitein. She is the senior director of the Brennan Center’s Liberty and National Security Program.
Transcript
Hannah McCarthy: [00:00:03] Did you hear that?
Christina Phillips: [00:00:05] I hear it. Oh. It's spooky.
Hannah McCarthy: [00:00:09] The thunder is [00:00:10] back, so.
Christina Phillips: [00:00:11] Oh, great.
Hannah McCarthy: [00:00:12] Oh.
Christina Phillips: [00:00:13] No, I like it, I like it. I think it's good.
Hannah McCarthy: [00:00:16] All right, all right. You know what I can say? That I [00:00:20] am so frustrating.
Christina Phillips: [00:00:24] I like the thunder. It's a nice effect.
Hannah McCarthy: [00:00:27] Okay.
Christina Phillips: [00:00:28] Also, for what it's worth, I'm wearing two sets of headphones [00:00:30] right now. All right. Hello, Hannah.
Hannah McCarthy: [00:00:36] Hello, Christina.
Christina Phillips: [00:00:38] This is Civics 101, and today [00:00:40] we are talking about the Alien Enemies Act.
Archival: [00:00:43] President will invoke a 227 year old wartime law.
Archival: [00:00:47] And we have learned that it appears he could be invoking [00:00:50] the Alien Enemies Act of 1798.
Archival: [00:00:53] You must leave to the federal agencies this duty of handling all questions [00:01:00] Actions concerning aliens. This will prevent injustice.
Christina Phillips: [00:01:05] And so we are just talking about the Alien Enemies Act today, because [00:01:10] I think it's pretty fascinating to talk about a law that has only been used during the War of 1812. World War one, World War two, and now [00:01:20] in 2025.
Hannah McCarthy: [00:01:22] And I assume you are referring to the Trump administration's invocation of this act?
Christina Phillips: [00:01:28] Yes, I am, and our next episode [00:01:30] will be all about that. But for today, I just want to establish what the Alien Enemies act is, why it exists in the first place, and [00:01:40] how it's been used. So we don't usually read the text of a law on this show [00:01:50] because laws are rarely easy to read, much less listen to someone read. But I want to do that today because we've been hearing over and over from our guests that we should just start with the text. [00:02:00] So, are you ready? Pause for thunder.
Hannah McCarthy: [00:02:06] I'm just letting Mother Nature speak. I [00:02:10] am ready. I also feel like we have to jump in here and say that alien right is a legal term for non-citizens. And even though this term has [00:02:20] been around for a long time and it comes from Latin, it is also a word that people debate and they say dehumanizes non-citizens, which, given [00:02:30] the other common definition of alien. Yeah, that makes sense.
Christina Phillips: [00:02:35] It does indeed. And for what it's worth, prior administrations and other organizations [00:02:40] had or have tried to move away from using the word alien and replacing it with non-citizen. But you're right. The word alien has been used in case law for longer than [00:02:50] the United States has existed, and is being used in case law today. Okay. So the text we're going to read, the first part of the Alien Enemies Act, known as section 21, because that [00:03:00] is the meaty part and I'm just going to read the first few sentences, but please read the whole thing if you can. It's actually not that long. Whenever there is a [00:03:10] declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted [00:03:20] or threatened against the territory of the United States by any foreign nation or government, and the president makes public proclamation of the event [00:03:30] all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of 14 years and upward, who shall be [00:03:40] within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed [00:03:50] as alien enemies.
Hannah McCarthy: [00:03:53] Wait a minute. You say shawl?
Christina Phillips: [00:03:56] Shawl?
Hannah McCarthy: [00:03:58] That's so. Wait. That's so [00:04:00] British of you.
Christina Phillips: [00:04:01] Is it Chow?
Hannah McCarthy: [00:04:02] Well, I think it must just be like a New Hampshire thing.
Christina Phillips: [00:04:06] Oh, no. I think that's a I listen to a lot of audiobooks.
Hannah McCarthy: [00:04:11] Oh, [00:04:10] no, I honestly, I love it, I love it. I think you should leave it.
Christina Phillips: [00:04:16] Okay. Shawl. I want to call it a couple things here. [00:04:20] So the conditions that have to be met is that we're in a declared war or an invasion by a foreign country or nation, or the threat of an invasion [00:04:30] or predatory incursion by that nation.
Hannah McCarthy: [00:04:33] And in that circumstance, people in the US who are not naturalized, meaning they are not US citizens [00:04:40] who are aged 14 years or older can be apprehended, restrained, secured and removed.
Christina Phillips: [00:04:47] Yes, exactly. And it's important to point [00:04:50] out that the act doesn't specifically say that the president or the administration must uphold these non-citizens rights to due process [00:05:00] or habeas corpus, or any other individual rights found in the Constitution.
Hannah McCarthy: [00:05:06] But it also doesn't say that the president can disregard the [00:05:10] Constitution. Right?
Christina Phillips: [00:05:12] Right. And that becomes important as the legal understanding of who is guaranteed constitutional rights. And what those rights [00:05:20] entail gets more expansive over time after this act is passed.
Hannah McCarthy: [00:05:24] Okay, so reading this, I'm seeing a lot of what seems to me like ambiguity. And [00:05:30] also, this does seem like a lot of power to give a president. So what was going on in 1798 that led Congress to pass this law in the first place? [00:05:40]
Christina Phillips: [00:05:43] We will talk about that right after a little break. And also, this is just a shameless ask I have for people [00:05:50] listening to this. I would like to talk to people who know something about the Office of Personnel Management and the Office of Management and Budget, and I'm also looking for anyone who has been an inspector [00:06:00] general or worked for an inspector general's office in the federal government. So if any of those things is you, send us an email to Civics 101 at nhpr.org. I'm going [00:06:10] to try this out and see if it actually helps me find some people, because we've never tried it before. I don't think.
Hannah McCarthy: [00:06:15] That is brilliant. I'm going to start doing that. We're [00:06:30] back. We are talking about the Alien Enemies Act. And Christina, just before the break, I [00:06:40] asked you what was going on in 1798 that led Congress to pass this act. So what was going on?
Christina Phillips: [00:06:49] Okay, [00:06:50] 1798. We are still pretty fresh off the end of the Revolutionary War. We still have a bunch of war debts to other countries who helped us out like [00:07:00] France. And after a few years, the government sort of stopped paying those debts.
Hannah McCarthy: [00:07:07] Okay, so not very Lannister of us. That's not a [00:07:10] not great.
Christina Phillips: [00:07:11] How dare you invoke the Game of Thrones?
Tyrion Lannister: [00:07:15] Lannister always pays his debts.
Christina Phillips: [00:07:19] So this [00:07:20] lands us in what is called the quasi war, which was never an actual declared war. But at one point, France sees some US [00:07:30] ships, and then French privateers were attacking US merchant vessels, mostly in the Atlantic Ocean and the Caribbean and the US, which doesn't have a ton of money and doesn't [00:07:40] really have a strong organized navy, is kind of scrambling a little bit.
Liza Goitein: [00:07:45] Well, so the fear was that there might be people during wartime who were loyal [00:07:50] to the enemy nations and could sort of be a fifth column within the United States.
Christina Phillips: [00:07:55] This is Liza Goitein. She is the senior director of the Liberty and National Security [00:08:00] Program at the Brennan Center for justice.
Liza Goitein: [00:08:06] And a really important point is that at the time, there really wasn't [00:08:10] an alternative in either the criminal law or immigration law to deal with people inside the country that were national security threats. And certainly [00:08:20] in terms of having sort of federal law enforcement resources, even to sort of detect and respond to national security threats within the United States that [00:08:30] just wasn't there in any significant respect.
Christina Phillips: [00:08:33] And the US Marshals Service was the first federal law enforcement department. But we only got that in 1789, right? [00:08:40]
Hannah McCarthy: [00:08:40] There's no like Department of Homeland Security, for example.
Christina Phillips: [00:08:43] Yeah, we barely had an organized military, much less a national security team, a national intelligence team. And [00:08:50] when it comes to immigration law, we've got the first naturalization acts of 1790 and 1795 and not much else. And [00:09:00] for what it's worth, the Naturalization Act provided a pathway to citizenship for free white people who had lived in the United States for five years and had good moral character. [00:09:10] So other than naturalization at that time, there was no asylum process. There was no green cards, no work visas. There's no immigration courts. None of that. [00:09:20]
Liza Goitein: [00:09:20] And at the same time, you know, we didn't have the same conceptions of constitutional rights. And even the law of war was was in a very different place back then. So you had this combination [00:09:30] of not having the same rights and also not having the same ability to ferret out national security threats. And so what they came up with was this very blunt [00:09:40] hammer, where people who were natives of or born in an enemy nation during wartime could just summarily be detained or deported without any [00:09:50] sort of evidence or inquiry, even into whether they were disloyal to the United States.
Hannah McCarthy: [00:09:55] So this was like.
Hannah McCarthy: [00:09:56] A giant panic button that cast a wide [00:10:00] net because we hadn't come up with any other processes yet, or invented the law enforcement jobs that could do the way, more nuanced work of actually figuring [00:10:10] out who might be a legitimate threat.
Christina Phillips: [00:10:16] Yeah, and we're still licking our wounds from one war in the midst [00:10:20] of another war that wasn't a war. And we're in debt and still very, very new as a country. So we're worried about France and French people in the US. And [00:10:30] we pass four laws known as the Alien and Sedition Acts, which.
Liza Goitein: [00:10:35] Was a very controversial legislative package even at the time. Uh, and the Alien [00:10:40] Enemies Act is is the only one that actually remains. The Alien Enemies Act was the authority that would apply if this undeclared naval conflict with France escalated [00:10:50] into a perfect or total war. That was the terminology through a congressional declaration of war or through a French ground assault. [00:11:00] So it was sort of contingency planning for if this naval conflict turned into something bigger. At the same time, Congress also enacted the [00:11:10] Alien Friends Act, which was the peacetime counterpart, basically, for if the conflict did not escalate in that way. And [00:11:20] in fact, it did not escalate in that way. And so the alien enemies act didn't end up being used at the time, but it was very clear that this was sort of the wartime version of [00:11:30] how the president could treat non-U.S. citizens in a situation that, you know, for the Alien Enemies Act rose to the level of actual [00:11:40] war or otherwise it would go through the Alien Friends Act.
Christina Phillips: [00:11:44] And then there was the Sedition Act, which criminalized false or malicious statements about the government and a new Naturalization [00:11:50] Act that changed residency requirements for naturalized citizens. And it upped it from five years to 14. And as Liza said, everything but the Alien [00:12:00] Enemies Act was repealed or it expired by 1802.
Hannah McCarthy: [00:12:04] But the Alien Enemies Act still stands. So how has it been used since? [00:12:10]
Archival: [00:12:12] Neither the army nor the War Relocation Authority relished the idea of taking men, women and children from their homes, their shops and their farms. [00:12:20] So the military and civilian agencies alike, determined to do the job as a democracy, should, with real consideration for the people involved.
Christina Phillips: [00:12:30] Okay, [00:12:30] we've got the War of 1812 where President James Madison targeted British nationals. We don't exactly know how many people were detained or deported [00:12:40] from that one. And then we've got World War One. President Woodrow Wilson imposed the act first on male German nationals, and then expanded [00:12:50] it to include German Austrians and women of both nationalities. It was enacted in World War Two in order to detain Japanese, [00:13:00] German and Italian nationals.
Archival: [00:13:02] Our west coast became a potential combat zone. Living in that zone were more than 100,000 persons of Japanese [00:13:10] ancestry, two thirds of them American citizens, one third aliens.
Liza Goitein: [00:13:15] The people who were interned under the Alien Enemies Act were basically [00:13:20] 30,000 non-U.S. citizens of Japanese, German, and Italian descent. The internment of Japanese Americans during World [00:13:30] War Two was not under the Alien Enemies Act that was under an executive order, basically a claim of inherent constitutional power by President Roosevelt. It's actually generally [00:13:40] referred to as incarceration. The incarceration of Japanese Americans during World War Two was not done under the Alien Enemies Act, because the Alien Enemies Act only applies to people who [00:13:50] are not citizens of the United States.
Christina Phillips: [00:13:52] And actually, I found out that there was a few thousand additional people from Latin American countries who were actually deported into the United States [00:14:00] so that they could be detained. So other countries were sending their Japanese, Italian or German nationals to the United States for detention. And then Liza [00:14:10] pointed out that in the years since the law was passed, our legal understanding of how people can be treated specifically in wartime and more broadly, anyone within the United States [00:14:20] is different than it was in 1798 or even during these three previous wars. And this comes down to due process.
Hannah McCarthy: [00:14:29] To be clear, when [00:14:30] we're talking about due process, we're talking about giving a person the opportunity after they have been detained to know the charges against them and file a petition to the court asking [00:14:40] the court to review those charges, question law enforcement, determine if their detention or deportation is lawful.
Christina Phillips: [00:14:48] Yes, exactly.
Liza Goitein: [00:14:49] This really goes [00:14:50] to the question of what rights people in this country have in wartime. In 1798, so-called enemy aliens really had no rights whatsoever. So there wasn't even a lot of pushback [00:15:00] on that score when the Alien Enemies Act was enacted. We have a very different conception of rights in wartime today. Congress has passed several [00:15:10] laws providing reparations and apologies for people who were interned under the Alien Enemies Act. During that time period, and also since [00:15:20] World War II, there's been a revolution in our understanding of the rights that are guaranteed by the Constitution. Courts have now made clear that due process and equal protection apply even [00:15:30] in wartime, and the modern concepts of these rights are much broader and more robust than they were 80 years ago.
Hannah McCarthy: [00:15:49] I [00:15:40] mean, [00:15:50] this makes a lot of sense. Christina. We are in a really substantially different legal landscape today than we were in 1798 98 or during World War one, even [00:16:00] during World War two. Right. We are just in a country that has different, more robust, more complex laws pertaining to non-citizens.
Christina Phillips: [00:16:09] I was thinking about [00:16:10] this when I was thinking about what things were like in 1798. As far as who is included in constitutional protections. People who were enslaved were not granted [00:16:20] constitutional protections. In many cases, women were not granted many constitutional rights. So even on in that level, like our understanding of who gets constitutional [00:16:30] rights has evolved quite a bit. And that includes people who are not US citizens. So there's a case in 1903 known as the Japanese [00:16:40] immigrant case, where the Supreme Court said that if someone entered the United States lawfully and then was subject to deportation, they had a right to challenge that deportation in court. [00:16:50] And then over the course of the 20th century, there have been a number of cases that extended those constitutional rights to people without lawful status.
Hannah McCarthy: [00:16:59] So [00:17:00] bringing it back around to wartime. You said the Alien Enemies Act had not been used since World War Two. But you mean not until now? [00:17:10]
Christina Phillips: [00:17:11] Yes.
Liza Goitein: [00:17:15] I mean, I would say this law had been confined to the dustbin of history [00:17:20] before President Trump, um, you know, dusted it off and and revitalized it.
Christina Phillips: [00:17:37] In [00:17:30] March, President Trump officially invoked the [00:17:40] Alien Enemies Act via presidential proclamation. We're going to talk about how Trump has revitalized the act in 2025, what he's doing with it, how he's interpreting [00:17:50] it, and what the courts have said about it. That's all coming up in part two, which will drop in your podcast feed soon, or depending on when you listen to this, it might already be there. This [00:18:20] episode was produced by [00:18:30] me, Christina Phillips and edited by Hannah McCarthy. Our team includes Rebecca LaVoie, our executive producer, Marina Henke, our producer and host, nick Capodice. Civics [00:18:40] 101 is a production of NHPR New Hampshire Public Radio.