What is the Alien Enemies Act?

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. CLICK HERE: Visit our website to see all of our episodes, donate to the podcast, sign up for our newsletter, get free educational materials, and more! To see Civics 101 in book form, check out A User's Guide to Democracy: How America Works by Hannah McCarthy and Nick Capodice, featuring illustrations by Tom Toro. Check out our other weekly NHPR podcast, Outside/In - we think you'll love it! Learn more about your ad choices. Visit megaphone.fm/adchoices

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• 2:02Speaker 04

  All right. Hello, Hannah. Hello, Christina. This is Civics 101, and today we are talking about the Alien Enemies Act.

• 2:10Speaker 05

  The president will invoke a 227-year-old wartime law.

• 2:14Speaker 06

  And we have learned that it appears he could be invoking the Alien Enemies Act of 1798.

• 2:20Speaker 07

  You must leave to the federal agencies this duty of handling all questions concerning aliens. This will prevent injustice.

• 2:32Speaker 04

  So we are just talking about the Alien Enemies Act today because I think it's pretty fascinating to talk about a law that has only been used during the War of 1812, World War I, World War II, and now in 2025.

• 2:49Hannah McCarthy?

  And I assume you are referring to the Trump administration's invocation of this act?

• 2:55Speaker 04

  Yes, I am. And our next episode 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 how it's been used.

• 3:14Speaker 04

  So we don't usually read the text of a law on this show 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. So are you ready?

• 3:30Speaker 04

  Pause for thunder.

• 3:33Hannah McCarthy?

  I'm just letting Mother Nature speak.

• 3:37Hannah McCarthy?

  I 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 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 the other common definition of "alien," Yeah, that makes sense.

• 4:02Speaker 04

  It does, indeed. And for what it's worth, prior administrations and other organizations had or have tried to move away from using the word "alien" and replacing it with "noncitizen." But you're right, the word "alien" has been used in case law for longer than 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 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.

• 4:35Speaker 04

  "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 public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of 14 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."

• 5:20Hannah McCarthy?

  Wait a minute. You say "shall."

• 5:24Speaker 04

  "Shall."

• 5:25Hannah McCarthy?

  That's so...

• 5:26Speaker 04

  Wait.

• 5:26Hannah McCarthy?

  That's so British of you.

• 5:28Speaker 04

  Is it "shall"?

• 5:30Hannah McCarthy?

  I think it's, it must just be like a New Hampshire thing.

• 5:33Speaker 04

  Oh, no, I think that's a, I listen to a lot of audiobooks.

• 5:38Hannah McCarthy?

  Oh, no, I honestly, I love it. I love it. I think you should leave it.

• 5:43Speaker 04

  Okay, "shall." I want to call out a couple of things here. 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, or predatory incursion by that nation.

• 6:01Hannah McCarthy?

  And in that circumstance, people in the US who are not naturalized, meaning they are not US citizens, who are aged 14 years or older, can be apprehended, restrained, secured, and removed.

• 6:15Speaker 04

  Yes, exactly. And it's important to point out that the act doesn't specifically say that the president or the administration must uphold these non-citizens' rights to due process, or habeas corpus, or any other individual rights found in the Constitution.

• 6:33Hannah McCarthy?

  But it also doesn't say that the president can disregard the Constitution, right?

• 6:39Speaker 04

  Right. And that becomes important as the legal understanding of who is guaranteed constitutional rights and what those rights entail gets more expansive over time after this act is passed.

• 6:52Hannah McCarthy?

  OK, so reading this, I'm seeing a lot of what seems to me like ambiguity. And 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?

• 7:10Speaker 04

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• 10:56Hannah McCarthy?

  We're back. We are talking about the Alien Enemies Act. And Christina, just before the break, I asked you what was going on in 1798 that led Congress to pass this act? So what was going on?

• 11:12Speaker 04

  Okay, 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 France. And after a few years, the government sort of stopped paying those debts.

• 11:29Hannah McCarthy?

  Okay, so not very Lannister of us. That's not, uh, not great.

• 11:33Speaker 04

  How dare you invoke the game of France?

• 11:37Speaker 00

  Lannister always pays his debts.

• 11:41Speaker 04

  So this lands us in what is called the quasi-war, which was never an actual declared war. But at one point, France seized some US 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 really have a strong, organized navy, is kind of scrambling a little bit.

• 12:07Speaker 10

  Well, so the fear was that there might be people during wartime who were loyal to the enemy nations and could sort of be a fifth column within the United States.

• 12:17Speaker 04

  This is Liza Goytine. She is the Senior Director of the Liberty and National Security Program at the Brennan Center for Justice.

• 12:28Speaker 10

  And a really important point is that at the time, there really wasn't an alternative in either the criminal law or immigration law to deal with people inside the country that were national security threats. And certainly 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 just wasn't there in any significant respect.

• 12:55Speaker 04

  And the US Marshal Service was the first federal law enforcement department, but we only got that in 1789.

• 13:02Hannah McCarthy?

  Right, there's no, like, Department of Homeland Security, for example.

• 13:05Speaker 04

  Yeah, we barely had an organized military, much less a national security team, a national intelligence team. And when it comes to immigration law... We've got the first Naturalization Acts of 1790 and 1795 and not much else. And 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. So, other than naturalization, at that time, there was no asylum process, there's no green cards, no work visas, there's no immigration courts, none of that.

• 13:42Speaker 10

  And at the same time, you know, we didn't have the same conceptions of constitutional rights. And even the law of war was in a very different place back then. So you had this combination 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 hammer where people who were natives of or born in an enemy nation during wartime could just summarily be detained or deported without any sort of evidence or inquiry even into whether they were dispoiled to the United States.

• 14:17Speaker 04

  So this was like a giant panic button that cast a wide 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 out who might be a legitimate threat.

• 14:38Speaker 04

  Yeah, and we're still licking our wounds from one war in the midst 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 we pass four laws known as the Alien and Sedition Acts.

• 14:57Speaker 10

  Which was a very controversial legislative package even at the time. And the Alien Enemies Act 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 into a perfect or total war, that was the terminology, through a congressional declaration of war or through a French ground assault. So it was sort of contingency planning for if this naval conflict turned into something bigger. At the same time, Congress also enacted the Alien Friends Act, which was the peacetime counterpart, basically, for if the conflict did not escalate.

• 15:41Speaker 10

  In that way, and 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 how the president could treat non-US citizens in a situation that, you know, for the Alien Enemies Act, rose to the level of actual war, or otherwise it would go through the Alien Friends Act.

• 16:06Speaker 04

  And then there was the Sedition Act, which criminalized false or malicious statements about the government, and a new Naturalization 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 Enemies Act was repealed, or it expired by 1802.

• 16:25Hannah McCarthy?

  But the Alien Enemies Act still stands. So how has it been used since?

• 16:34Speaker 11

  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. So the military and civilian agencies alike determined to do the job as the democracy should, with real consideration for the people involved.

• 16:53Speaker 04

  Okay, 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 from that one. And then we've got World War I. President Woodrow Wilson imposed the act first on male German nationals and then expanded it to include German Austrians and women of both nationalities.

• 17:18Speaker 04

  It was enacted in World War II in order to detain Japanese, German, and Italian nationals.

• 17:25Speaker 11

  Our West Coast became a potential combat zone. Living in that zone were more than 100,000 persons of Japanese ancestry. Two-thirds of them are American citizens, one-third aliens.

• 17:37Speaker 10

  The people who were interned under the Alien Enemies Act were basically 30,000 non-US citizens of Japanese, German, and Italian descent. The internment of Japanese-Americans during World War II 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 referred to as incarceration. The incarceration of Japanese-Americans during World War II was not done under the Alien Enemies Act because the Alien Enemies Act only applies to people who are not citizens of the United States.

• 18:14Speaker 04

  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 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 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, is different than it was in 1798 or even during these three previous wars. And this comes down to due process.

• 18:51Speaker 10

  To be clear, when 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 the court to review those charges, question law enforcement, determine if their detention or deportation is lawful.

• 19:10Speaker 04

  Yes, exactly.

• 19:11Speaker 10

  This really goes 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 on that score when the Alien Enemies Act was enacted. We have a very different conception of rights in wartime today.

• 19:30Speaker 10

  Congress has passed several laws providing reparations and apologies for people who were interned under the Alien Enemies Act during that time period. And also, since 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 in wartime. And the modern concepts of these rights are much broader and more robust than they were 80 years ago.

• 20:12Hannah McCarthy?

  I mean, this makes a lot of sense, Christina. We are in a really substantially different legal landscape today than we were in 1798 or during World War I, even during World War II, right? We are just in a country that has different, more robust, more complex laws pertaining to non-citizens.

• 20:31Speaker 04

  I was thinking about 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 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 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 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.

• 21:13Speaker 04

  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.

• 21:21Hannah McCarthy?

  So, bringing it back around to wartime, you said the Alien Enemies Act had not been used since World War II. But you mean not until now?

• 21:33Speaker 04

  Yes.

• 21:37Speaker 10

  I mean, I would say this law had been confined to the dustbin of history before President Trump, you know, dusted it off and revitalized it.

• 21:59Speaker 04

  In March, President Trump officially invoked the 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 it, and what the court's upset 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.

• 22:50Speaker 04

  This episode was produced by me, Christina Phillips, and edited by Hannah McCarthy. Our team includes Rebecca Lavoy, our executive producer, Marina Henke, our producer, and host, Nick Capodice. Civics 101 is a production of NHPR, New Hampshire Public Radio.

• 23:21Speaker 12

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• 23:51Speaker 00

  Now streaming on Paramount+. I'm Dexter Morgan. I've been killing killers for half my life. It gets to you. You're having a midlife crisis. I'm not ready for this. He's back. I'm older. I'm wiser. And sharper than ever. Things are going to get messy. But if I can't believe in myself, I can't believe in anything. Dexter Resurrection. New season now streaming on the Paramount+ Premium Plan.

• 24:22Speaker 01

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