THE ALIEN ENEMIES ACT—ALMOST AS OLD AS THE CONSTITUTION

Aerial view of the Terrorism Confinement Center (CECOT). This file is licensed under the Creative Commons Attribution 3.0 Unported license.

THE ALIEN ENEMIES ACT—ALMOST AS OLD AS THE CONSTITUTION AND A STILL VIABLE LAW FOR A STRONG EXECUTIVE TO INVOKE TO PROTECT THE HOMELAND

 

INTRODUCTION

On Friday the President issued a Proclamation that is detailed and explicit in its marshaling of information, setting forth that the influx of Venezuelan Tren De Aragua (TdA) criminals into this country is consistent with the policies that Congress considered in its 1798 enactment and 1918 recodification of the Alien Enemies Act, 5 U.S.C. Section 20 (“the Act”). On Saturday, March 15th, United States District Judge James E. “Jeb” Boasberg, an Obama appointee, issued a nationwide temporary restraining order, barring an Article II vested Chief Executive from exercising his authority under the Act. The effect of this was to order, for the 14-day period of the initial injunction, the cessation of all attempts to enforce the plain meaning of the Act, going so far as to order aircraft carrying these miscreants to turn around. It is believed, but not confirmed, that the initial flight had not turned around and delivered them to a facility in El Salvador, apparently being paid handsomely to warehouse these criminal agents. The purpose of this brief piece is to establish a position in support of the following:

• That the Supreme Court, in considering the Act and similar enactments that date to the early post-ratification period, nonetheless has upheld its relevance and significance in the modern era as an expression of Congressional delegation of authority to the Chief Executive while holding that its age was no bar to its enforcement.
• Article II vests the President with war powers as well as full executive authority in matters of immigration and naturalization.
• That the fact that it had only been previously invoked in periods of declaration of war or in relation to acts taking place during a declared war does not limit its application in protections from de facto invasions or incursions.
• The Judiciary does not get to review these matters in what would be a clear violation of fundamental principles of separation of powers.

 

PRESIDENT TRUMP’S MARCH 14TH PROCLAMATION SETS THE STAGE

The Proclamation is reproduced here in relevant part. The full Proclamation can be found at whitehouse.gov.

 

“As President of the United States and Commander in Chief, it is my solemn duty to protect the American people from the devastating effects of this invasion. NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by the authority vested in me by the Constitution and the laws of the United States of America, including the Alien Enemies Act, 50 U.S.C. 21 et seq., hereby proclaim and direct as follows:

Section 1. I find and declare that TdA is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States. TdA is undertaking hostile actions and conducting irregular warfare against the territory of the United States both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela. I make these findings using the full extent of my authority to conduct the Nation’s foreign affairs under the Constitution. Based on these findings, and by the authority vested in me by the Constitution and the laws of the United States of America, including 50 U.S.C. 21, I proclaim that all Venezuelan citizens 14 years of age or older who are members of TdA, are within the United States, and are not actually naturalized or lawful permanent residents of the United States are liable to be apprehended, restrained, secured, and removed as Alien Enemies. I further find and declare that all such members of TdA are, by virtue of their membership in that organization, chargeable with actual hostility against the United States and are therefore ineligible for the benefits of 50 U.S.C. 22. I further find and declare that all such members of TdA are a danger to the public peace or safety of the United States.”

 

The Act is reproduced here in its original 1798 form as signed into law by John Adams and its 1918 amendment by Congress to expand its reach beyond just males;

 

“An Act Respecting Alien Enemies

SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President of the United States shall make public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies. And the President of the United States shall be, and he is hereby authorized, in any event, as aforesaid, by his proclamation thereof, or other public act, to direct the conduct to be observed, on the part of the United States, towards the aliens who shall become liable, as aforesaid; the manner and degree of the restraint to which they shall be subject, and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those, who, not being permitted to reside within the United States, shall refuse or neglect to depart therefrom; and to establish any other regulations which shall be found necessary in the premises and for the public safety”

 

The 1918 Amendment follows:

 

Ҥ21. Restraint, regulation, and removal

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 a 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, restrained, secured, and removed as alien enemies. The President is authorized in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations that are found necessary in the premises and for the public safety.”

 

THE UNITED STATES SUPREME COURT WOULD LIKELY DEFER TO THE PROCLAMATION AS A PROPER EXERCISE OF VESTED CONSTITUTIONAL AUTHORITY

In a 1950 case involving the disposition of German civilian nationals in the service of the Wehrmacht in China, the Supreme Court dismissed their habeas corpus petitions after they were convicted in military tribunals of providing assistance to enemies of the United States even after the cessation of the war in Europe. Notwithstanding the fact that the case arose in the context of actions during and after a declared war, the Court reaffirmed the vast powers the Executive has when an alien also becomes an enemy. In Johnson v. Eisentrager, 339 US 763, the Court stated the following:

 

“Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to wartime security. This is in keeping with the practices of the most enlightened of nations and has resulted in treatment of alien enemies more considerate than that which has prevailed among any of our enemies and some of our allies. This statute was enacted or suffered to continue by men who helped found the Republic and formulate the Bill of Rights, and although it obviously denies enemy aliens the constitutional immunities of citizens, it seems not then to have been supposed that a nation’s obligations to its foes could ever be put on a parity with those to its defenders.

The resident enemy alien is constitutionally subject to summary arrest, internment, and deportation whenever a ‘declared war’ exists. Courts will entertain his plea for freedom from Executive custody only to ascertain the existence of a state of war and whether he is an alien enemy and so subject to the Alien Enemy Act. Once these jurisdictional elements have been determined, courts will not inquire into any other issue as to his internment.”

 

Importantly, the Court also stated that the disabilities that this country places upon the alien who also becomes an enemy are imposed temporarily as an incident of war and not of alienage. The fact that this case arose in the post-declared war period does not mean that its scope is so limited. That such matters are within, as stated in the recent Proclamation of the President, the powers of the President pursuant to the Constitution and laws of the United States as well as the Act, this brings in ALL of the Executive authority, including war powers and those involving immigration. The important holdings in cases like Johnson above are that once the finding of declared war, or invasion, or predatory incursion is made by the Court they must defer to the Executive. This is where Judge Boasberg let politics get in the way of proper statutory interpretation. He vastly exceeded his authority.

Likewise, in the 1948 case of Ludeke v. Watkins, 335 U.S. 160, the vast authority conferred by the Act was set forth in very compelling fashion and went back to an analysis by Chief Justice Marshall in a case that arose in the 1812 war;

 

“The act concerning alien enemies, which confers on the president very great discretionary powers respecting their persons, Marshall, C.J., in Brown v. United States, 8 Cranch 110, 126, appears to me to be as unlimited as the legislature could make it. The very nature of the President’s power to order the removal of all enemy aliens rejects the notion that courts may pass judgment upon the exercise of his discretion. This view was expressed by Mr. Justice Iredell shortly after the Act was passed, Case of Fries, 9 Fed. Cas. No. 5126, and every judge before whom the question has since come has held that the statute barred judicial review. [We would so read the Act if it came before us without the impressive gloss of history.

The power with which Congress vested the President had to be executed by him through others. He provided for the removal of such enemy aliens as were ‘deemed by the Attorney General’ to be dangerous.  But such a finding, at the President’s behest, was likewise not to be subjected to the scrutiny of courts.

We have always been reluctant to say a statute of this early origin offends the Constitution, absent clear inconsistency.  The Alien Enemy Act of 1798 is almost as old as the Constitution, and it would savor of doctrinaire audacity now to find the statute offensive to some emanation of the Bill of Rights.”

 

There you have it. Would we say the Fourth Amendment or any other protection of the Bill of Rights has become obsolescent? Of course not. The public policies and purposes of the Act are as viable today as they were in the nascent Republic. Congress never repealed it and, in fact, broadened its application to females in 1918 (Mata Hari?).

 

CONGRESS WAS CAREFUL TO NOT LIMIT THE APPLICATION OF THE ACT TO A DECLARED WAR AND BY ITS TERMS WOULD APPLY TO THE MISSION OF TdA IN THE UNITED STATES AT THE BEHEST OF MADURO AND THE CARTELS

Courts are bound to interpret the words of a statute according to their plain meaning so as to not substitute their judgments for the legislative branch. Judge Boasberg only looked to the context upon which the Act had previously been applied without regard for the plain meaning of the words. This, coupled with the fact of the militarization of cartels in preying upon the American public, destabilizing our infrastructure, and diminishing our Treasury, justifies the swift expulsion of these agents of predation sent here to wage a different kind of modern war. This is as effective on a long-term basis as an actual attack. Americans are dying, and Maduro does with criminals he let out of his jail what he cannot do with missiles. Biden let them in unvetted. The differences should not bar the application of the Act as well as other proper Executive authority. In practice, courts look to dictionaries to determine “plain meaning.” Judge Boasberg should have consulted the same Merriam-Webster dictionary courts all over the country look to. “Predatory Incursion” is well defined:

 

predatory – adjective

pred·​a·​to·​ry | ˈpre-də-ˌtȯr-ē

1 a : of, relating to, or practicing plunder, pillage, or rapine
b : inclined or intended to injure or exploit others for personal gain or profit
i.e. predatory pricing practices

 

incursion – noun

in·​cur·​sion | in-ˈkər-zhən

1 : a hostile entrance into a territory “

 

“Invasion” is broadly construed as the incursion of an “army” or the spread of something hurtful. The border states have had their resources sapped by cartels working with TdA and other groups in military fashion. They use drones and surveillance and have military-style weapons. It is time for our Supreme Court to vindicate the powers of the Executive Branch to use gathered intelligence and their vast resources to protect us from predation of all kinds. It is not for courts to second guess such intelligence and the collective pronouncements of the President acting through his Department of Justice and his Homeland Security apparatus. It appears TDS in the judiciary has emboldened TdA—not a good look, Judge Boasberg.

 

CONCLUSION

The border and its lack of security during the Biden Administration has emboldened our enemies by allowing groups of dangerous gangs to wage a new and different war on our populace. Since 1798, Congress has vested in the President vast authority and has never repealed this statute or its conferred authority. The matter should be deemed non-justiciable as it is very clear this is an invasion as well as a predatory incursion. The Administration will get no help from the DC Court of Appeals. I hope the Supreme Court continues to strengthen the Executive Branch as envisioned by the Framers and Article II. Reverse this travesty.

 

Mike Imprevento
March 17th, 2025