The Alien Enemies Act

In March 2025, President Trump issued an executive order invoking a centuries-old law: the Alien Enemies Act. The Act allows a president to detain or deport citizens of foreign adversaries to the United States, but only in the case of a "declared war" or "invasion." Now, the Trump administration and the courts are locked in a battle over whether the president's use of the Act, under which people have already been deported, is legal. Today on the show: where the Alien Enemies Act came from, how presidents have used it before, and what that tells us about what's to come. See pcm.adswizz.com https://pcm.adswizz.com for information about our collection and use of personal data for sponsorship and to manage your podcast sponsorship preferences. NPR Privacy Policy https://www.npr.org/about-npr/179878450/privacy-policy

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• 0:00Speaker 00

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• 0:17Speaker 01

  At 5:45 PM Eastern Time on Saturday, March 15th, 2025, a plane took off from Harlingen, Texas. As that plane flew south, turning towards Honduras, news alerts went off in the United States.

• 0:34Speaker 02

  President Trump invoked a wartime law that gives him sweeping deportation powers. It's called the Alien Enemies Act of 1798.

• 0:42Speaker 03

  It gives presidents power to order the rapid detention and deportation of non-citizens older than 14.

• 0:49Speaker 04

  It is clear the US is not in a war right now.

• 0:52Speaker 05

  But in his order, Trump described Venezuela's Prisión de Aragua prison gang as a force invading the US.

• 0:58Speaker 04

  Many view this move as an attempt by the Trump administration to accelerate deportations.

• 1:03Speaker 06

  I think an old law is a virtue, not a vice.

• 1:06Speaker 02

  The ACLU sued to stop these deportations, and a federal judge agreed to temporarily block them. Despite this, a plane landed in El Salvador, carrying hundreds of deportees from the United States.

• 1:19Rund Abdelfatah?

  It's unclear if the deportations violated a judicial order. President Trump asked the Supreme Court to intervene. He wanted the injunction, which a federal judge put on his ability to use the Alien Enemies Act, to be lifted. The Supreme Court ended up issuing a narrow procedural ruling, lifting the order, saying the migrants should have filed their cases in the states where the migrants were being detained, and not in Washington DC. But the justices avoided answering the question of whether or not Trump's use of the Alien Enemies Act was constitutional.

• 1:54Speaker 01

  And that's the law at the heart of this story. The Alien Enemies Act allows presidents to detain or deport citizens of foreign adversaries to the United States, but only if a declared war or invasion of the US has taken place. The Trump administration, including Tom Homan, the president's border czar, is arguing that the 137 Venezuelans it deported using the Alien Enemies Act were, in a sense, invading the United States as alleged members of the gang Tren de Aragua, or TDA.

• 2:29Speaker 08

  TDA is an enemy in this country. We know TDA, based on a lot of evidence, are part of the Maduro regime through the military and law enforcement. They've infiltrated them. And look, they invaded this country to unsettle this country, whether it's through Fentanyl killing thousands of Americans or through the violence perpetrated in our cities. The president did the right thing. I stand by him.

• 2:50Rund Abdelfatah?

  But at least 27 of the men the Trump administration deported without a trial did not have deportation orders against them. An ICE official has conceded that, quote, "many" "did not have criminal records." And court filings showing the criteria Department of Homeland Security officers used to identify the alleged gang members indicate that they relied heavily on tattoos, which investigative reporters who have studied the TDA gang say are, quote, "unreliable" and, quote, "highly subjective" as evidence.

• 3:23Speaker 01

  Critics of the Trump administration's actions are calling its use of the Alien Enemies Act "a massive overreach, an abuse of executive power." But Stephen Miller, the White House Deputy Chief of Staff, told reporters in March that the president is using the law exactly as the founding fathers intended.

• 3:42Speaker 09

  The founding generation that wrote this law very clearly, these are the same people who wrote the Constitution, very clearly wanted to ensure the president had the broadest range of authority to remove from the nation non-citizens who are part of an alien enemy force. And that's the authority the president has. And in the coming days, you will see the full suite of presidential authorities used to extirpate this gang, this terrorist organization, from our soil.

• 4:13Rund Abdelfatah?

  All of this left a lot of people wondering, where did the law at the center of all of this come from? Is what's happening now in line with how US presidents have used the Alien Enemies Act in the past?

• 4:26Speaker 01

  So with that in mind, we wanted to talk to someone who has read this law and who has studied the role it's played in American history.

• 4:34Speaker 10

  What's old is new again.

• 4:35Speaker 01

  Daniel Tishner is a professor at the University of Oregon.

• 4:40Speaker 10

  I teach political science and I'm also the co-director of the Waymore Center for Law and Politics.

• 4:46Speaker 01

  He studies the history of immigration in the US and recently wrote an article breaking down the Alien Enemies Act for The Conversation, an independent news site written by academic experts.

• 4:57Speaker 10

  I certainly did not expect to be talking about this obscure 18th century law. It has always been there for the taking if a president wanted to try to use it as a way to exercise really broad unrestrained powers in terms of the arrest, regulation, detention, and removal of non-citizens.

• 5:23Rund Abdelfatah?

  I'm Rande Abdelfattah.

• 5:24Speaker 01

  And I'm Ramtin Arablouei.

• 5:27Rund Abdelfatah?

  On today's episode of Throughline from NPR, where the Alien Enemies Act came from, how American presidents have used it before, and what that tells us about what's to come.

• 5:42Speaker 11

  This is Paul from Baltimore, Maryland, 21218. We're home to the James Webb Space Telescope. We're not the center of the universe, but you can see it from here. You're listening to Throughline from NPR.

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• 7:25Rund Abdelfatah?

  Part one, enemies. The Alien Enemies Act is one of the United States' oldest immigration laws. And for many Americans, the history of immigration in this country is personal. It's the story of how they or their ancestors came to the United States and what challenges awaited them. That's the case for Daniel Tishner, a professor of political science at the University of Oregon.

• 7:53Speaker 01

  How did you get into studying immigration?

• 7:56Speaker 10

  Part of the answer is that I'm the grandson of immigrants. And so I think I've always been fascinated by the topic. So on the one side of the family are German Lutherans, on the other side are Hungarian Jews. Amazingly, my sister and I have had relatively little therapy, just like that. So I grew up hearing lots of stories of the struggles that members of my family had encountering the paper walls of the State Department during the Holocaust, trying to get family desperately out of Hungary on the one side. On the other side, you know, my grandparents were German immigrants, came from working class families, and you know, they came here and tried to start over and, you know, do well economically.

• 8:40Speaker 10

  So I think that was always in my brain. I don't think I set out to study immigration, but that obviously was always there.

• 8:47Rund Abdelfatah?

  We called Daniel because he's a self-proclaimed nerd on the history of US immigration policy. And after President Trump issued his March 2025 executive order invoking the Alien Enemies Act, we wanted someone to explain it to us, starting from the beginning.

• 9:03Speaker 01

  If you could take us back to the 1790s, basically, and paint a picture of the kind of context, the social-political context of that moment where the Alien Enemies Act is passed.

• 9:15Speaker 10

  So the social-political context, if anyone's seen the musical Hamilton, they may have some sense of the context.

• 9:22Speaker 01

  The Alien Enemies Act was drafted in 1798, more than a decade after the end of the Revolutionary War. The country was deeply polarized. On one side were the Federalists, Alexander Hamilton's party, and the party of John Adams, who was the president at this time. They wanted a strong federal government and a close relationship with England. On the other side, Thomas Jefferson's Democratic-Republican Party wanted the opposite: power divided between states and a cozy alliance with the French, whose navy was busy waging a war with the English.

• 9:58Speaker 10

  And what was happening in 1798 was that there was lots of naval confrontation between the US and France. There was a sense that we were facing an impending war with France. So Federalists in Washington were particularly unnerved by all of this. They felt that we needed to ready the country for a possible war with France. And we're in no mood to put up with any kind of disloyal speech, so that's where the Alien and Sedition Acts of 1798 came out.

• 10:29Rund Abdelfatah?

  The Alien and Sedition Acts were made up of four laws. The most famous and controversial one was the Sedition Act. It made it illegal to, quote, "print, utter, or publish any false, scandalous, and malicious writings about the US government." Basically, the Federalists, who had a majority in Congress, wanted to prevent the Democratic Republicans from undermining the government as it prepared for a possible war with France. And during the three years the law was in effect, they used it, making 25 arrests, 15 indictments, and 10 convictions. But another one of the four Sedition Acts slid more under the radar.

• 11:12Speaker 01

  The Alien Enemies Act.

• 11:14Speaker 10

  Whenever there is a declared war between the United States and any foreign nation or government.

• 11:19Speaker 01

  The Act has a few requirements. First of all, it's clearly not supposed to be used in peacetime. It says there has to be a declared war between the United States and a foreign nation or government. Second part.

• 11:32Speaker 10

  Any invasion or predatory incursion.

• 11:34Speaker 01

  It can only be used against citizens of the foreign country or government that's at war with the US. And finally, those people have to be 14 years or older, and they can't be US citizens.

• 11:47Speaker 10

  The president is authorized in any such event by his proclamation thereof.

• 11:52Speaker 01

  If all those criteria are met, the president is allowed to apprehend and deport non-citizens.

• 12:04Speaker 10

  The Alien Enemies Act in particular gave presidents broad authority to apprehend, detain, and remove non-citizens who were aged 14 years or older, who were from a hostile nation or government when that country was in a declared war with the US or was in an active invasion of US territory.

• 12:26Speaker 13

  Active invasion, so the declared war seems kind of black or white.

• 12:30Speaker 10

  Pretty cut and dry.

• 12:30Speaker 13

  Yeah, yeah.

• 12:31Speaker 10

  Yeah, that part's easy.

• 12:31Speaker 13

  Yeah, but the active invasion part seems like it could be open to interpretation.

• 12:36Speaker 10

  Correct. So the key part of that is the notion that a foreign nation is in the active attempt or engaged in a clear invasion of US territory. And this part kind of dovetails with Article II of the Constitution, which says that presidents have the power to repel a foreign invasion. So even if you don't have a, at that point, you might not have a declared war, but to keep us safe, you need that kind of decisive, independent action from somebody in government.

• 13:09Speaker 10

  That's when a president, under this legislation, has this power over non-citizens who are 14 years or older.

• 13:16Speaker 13

  Who are they thinking of, you know, given the context, you know, the French and the British naval, you know, wars that are happening? Who are they thinking of when they're coming up with these, you know, restrictions?

• 13:28Speaker 10

  So they're particularly worried about the French, but also at the time, the Federalist Party was particularly hot and bothered about French and Irish immigrants, who they worried were disloyal. They knew they were voting in larger numbers or kind of leaning towards Jefferson and the Democratic Republicans. And so that was the group that they had in mind. But I'll just add really quickly, John Adams never invoked it because in his interpretation, we were never, obviously, there was never a declared war with France. Moreover, he did not see an active invasion taking place, so he never used it.

• 14:06Speaker 01

  Was there pushback immediately when this is passed? In the sense that, did anyone say this is like too much power for the executive branch? What was the kind of immediate response from the public and also other politicians?

• 14:19Speaker 10

  Yeah, there was definitely a populist backlash, led by Jefferson and Madison. But, you know, overall, the kind of a sense that the Alienation Acts were incredibly unpopular. They were politically disastrous for John Adams, even though he was lukewarm about them himself. And a lot of it was about, you know, protecting the Bill of Rights and not having that easily violated by, you know, a tyrannical regime. And so that's how the Republicans and Jefferson framed it, as this is, you know, a fundamental threat to the basic liberties of people in this country.

• 14:58Speaker 10

  And by the way, he won pretty decisively in 1800, so that kind of shored up that critique.

• 15:03Speaker 01

  So since this was like a big issue that created popular backlash and potentially helped Jefferson win, why wasn't it repealed? Why after 1800 was this not like completely done away with and repealed?

• 15:17Speaker 10

  I think because it wasn't really used. So the Sedition Act was used, it was deeply unpopular, lots of attention, lots of squabbling in newspaper columns and speeches on the floor of Congress about the Sedition Act, about whether it was just or not. Because Adams never invoked the Alien Enemies Act, it really didn't get a lot of attention. And so my hunch is that it was kind of swept under the rug in some ways.

• 15:44Speaker 13

  Let's fast forward. When does it actually get used for the first time, or invoked by a US president for the first time?

• 15:52Speaker 10

  So there's irony in this because it's Jefferson's key partner in creating a new party and a new government. It was under James Madison during the War of 1812.

• 16:04Rund Abdelfatah?

  By 1812, naval spats between the British and the French had escalated to an all-out war. The United States tried to stay neutral while Napoleon and the British traded shots on the Atlantic. But when the British started intercepting American merchant ships and pressing sailors into service, President James Madison felt like his hand was forced.

• 16:26Speaker 10

  So it's a declared war. And of course, the hostilities are with Britain. And it's a pretty mild use of the Alien Enemies Act because what Madison says is he wants all British nationals who are living in the country to report what their age is, because remember 14 years is the key cutoff in the law, where they're living, how long they've been in residence, and whether they plan to naturalize. And we don't know, we don't have records to know exactly how many adhered to this, whether there were kind of draconian uses of it. But from what we can tell from the historical record, it was declared, invoked, and...

• 17:08Speaker 10

  You know, it didn't seem to raise a lot of eyebrows.

• 17:11Speaker 01

  And what's also interesting about that is there must have been a lot of British nationals in the US at that time. So this seems like a monumental task to kind of have an accounting of all those people. Was it like for intimidation or did they actually seem to think that they could do it?

• 17:26Speaker 10

  Well, he invoked it very early, so maybe it was meant to be something that was like, you know, as we're preparing for this, let's also have this in our tool belt.

• 17:35Speaker 01

  I see. So the War of 1812 comes and goes. You know, many people know the story. The British burned down the White House, they invaded DC. It's this big event. The US passes through that. When is the next instance in which it's used?

• 17:49Speaker 10

  The next time is World War I. It's another declared war. And this time it has more teeth than when we saw it unveiled in 1812.

• 17:58Speaker 01

  The US declared war on the German Empire in April 1917. Woodrow Wilson was president. And not long after, Wilson invoked the Alien Enemies Act, right off the bat.

• 18:11Speaker 10

  This time, Wilson wants to use it to force those who are foreign nationals from Germany, Bulgaria, Austria, and other central powers to register, to regulate them, and in some cases, to intern them. And so about a half million Germans living in the country were registered by the US Marshal Service. You might remember, this is the time when Americans, you know, have this anti-German hysteria and sauerkraut became liberty cabbage. It reminds you of freedom fries, right?

• 18:45Speaker 01

  Right, yeah.

• 18:46Speaker 10

  Yeah. And it had implication about what people could be employed for and so forth. And in addition, Germans living in the country had to surrender weapons, had to sometimes had to surrender radios if they were considered suspicious because that might be used for espionage purposes. They couldn't live near certain munitions factories and other things. And probably the most draconian part of this is around 6,000 German non-citizens ended up being interned as enemy aliens during the war. And they were sent to internment camps in Georgia and Utah.

• 19:26Speaker 13

  Oh, wow. That word in the American context, I, you know, associate with World War II Japanese.

• 19:30Speaker 10

  Exactly.

• 19:31Speaker 13

  So I had no idea that that this was happening during World War I. What is the enforcement of that actually look like on the ground during the war?

• 19:41Speaker 10

  Well, there's both an official and quasi-official version of this. The official part, as I mentioned, the US Marshal Service was called into action to do this. The Federal Bureau of Investigation was active in this. And so we had, you know, formal US officials who were making sure this was happening. I think local and state police cooperated. But we also had in place at the time, the American Protective League was a group of about, you know, several hundred thousand Americans who had volunteered to help secure national security for the country in towns and cities across the US. And so folks would volunteer and they would eavesdrop on their German neighbors, maybe open up their mail.

• 20:26Speaker 10

  If they were in restaurants, they would sit near them. And so they played a role in this as well.

• 20:31Speaker 13

  That sort of sounds like your neighbor is policing you, right? That's an unsettling image, you know, in the American democratic context.

• 20:38Speaker 10

  Very much so. And if you had a German accent, you particularly faced enormous scrutiny.

• 20:43Speaker 01

  What about the families of those people? Was that affecting the spouses and the families as well?

• 20:49Speaker 10

  I mean, there's two levels of this. One level is if you're among those 6,000 Germans and Austrians and others who are being shipped off to internment camps in Georgia and Utah, you're usually being shipped off from midwestern and northeastern cities. So, you know, your family members going a long ways and you have no contact with them. And so I think that had to be extraordinarily traumatic for those families. And then I think, you know, if you were facing the registration requirements and other forms of surveillance, I'm sure that put incredible stress on your family as well and made you very cautious and careful, especially in public. And I'm sure, you know, felt very repressive.

• 21:34Speaker 10

  But those, in contrast to the, to the 6,000 who were interned, at least you were an intact family, dealing with it together.

• 21:42Speaker 01

  I see a pattern here. Each time it seems to be invoked, it seems to get more intrusive and more intense. So this is World War I. So can you tell us about how the Alien Enemies Act was invoked in World War II?

• 21:58Speaker 10

  Sure. And just underscore again, this is the third time it's invoked. It's another declared war.

• 22:04Speaker 01

  Okay.

• 22:05Speaker 10

  Franklin Roosevelt uses it to authorize a whole set of special regulations and restrictions on German, Italian, and Japanese non-citizens. And you're right that each time the ante goes up. So in some ways, it replicates what Wilson did in World War I in terms of requires non-citizens to register. You now have the FBI, which is playing a lead role in this. You have kind of a similar set of restrictions in terms of gun ownership, where one could live if you were considered living near somewhere that kind of a sensitive national security area, they didn't want you there. You had to be fingerprinted, you had to tell me kids you had.

• 22:49Speaker 10

  So basically, all kinds of surveillance and scrutiny. And in this war, 30,000 foreign nationals were interned under the Alien Enemies Act, mostly Germans and Italians and some Japanese. And so, the first thing you might ask is, what about Japanese internment?

• 23:08Rund Abdelfatah?

  President Franklin Roosevelt invoked the Alien Enemies Act immediately after Japan attacked Pearl Harbor in December 1941. Within a few months, the Department of Justice had more than 2,000 Japanese nationals, non-US citizens, in custody, along with more than 1,000 Germans and 264 Italians. In early 1942, Roosevelt signed Executive Order 9066, which gave the government the authority to forcibly remove and incarcerate US citizens of Japanese descent into, quote, "relocation centers." Historically, this process has been referred to as, quote, "internment," and the centers as, quote, "camps."

• 23:58Speaker 10

  That is what led to the internment of both Japanese-American citizens and Japanese non-citizens. The Alien Enemies Act, in some senses, was kind of, you know, the first step in this regard. And so, in a sense, then, what you have here is, you know, two parallel things. One is the sweeping executive Japanese internment order issued from Roosevelt. And the second is this Alien Enemies Act, which is following the law in terms of targeting foreign nationals from countries that we were in active conflict with.

• 24:40Rund Abdelfatah?

  Over the course of the war, nearly 120,000 US citizens and residents of Japanese descent were forcibly relocated and incarcerated, many of them for three years or more. The majority were American citizens. Tishner says this instance raises an important point about the Alien Enemies Act. It can only be used to justify the detainment or deportation of people who aren't citizens. That explains why Roosevelt needed an executive order.

• 25:11Speaker 10

  At least, one of the key reasons is that the Roosevelt administration did not just want to go after Japanese non-citizens. They were also going after a huge population of Japanese-American citizens, especially on the West Coast. Franklin Roosevelt was well-informed by J. Edgar Hoover and other intelligence officers that there was no clear evidence that Japanese-American citizens and non-citizens of the West Coast had actively engaged in any sabotage, or at least nothing that would justify the mass removal and internment of those populations.

• 25:50Rund Abdelfatah?

  General John DeWitt played a key role in this mass removal and incarceration.

• 25:56Speaker 10

  But when he was confronted with the fact that there was not significant evidence of sabotage, he said, "The mere absence of this does not undermine the notion that they pose a threat because they are forever connected to Japan, because the racial strain," his exact words is, "the racial strain is undiluted the longer how long they have lived in this country." So it's clearly kind of national security

• 26:25Speaker 10

  laid upon pure racism.

• 26:28Speaker 01

  And during this time, the immigration system is probably getting more and more complex, meaning there's different kinds of status you can have. When they invoked the Alien Enemies Act, is it essentially wiping away anyone who doesn't have citizenship? If you had something like a permanent residence or a visa or something like that, was it covering basically anyone who was not either naturalized or a birthright citizen during these times?

• 26:55Speaker 10

  That is exactly correct. Yes.

• 27:00Rund Abdelfatah?

  Coming up, the Alien Enemies Act is invoked for the fourth time in American history. And for the first time ever, it's used during peacetime.

• 27:18Speaker 14

  You're listening to Three Line from NPR. This is Taylor from Oromos, California. And I love this show. I find it to be eye opening, thought provoking, and just done really, really well overall. Thank you all so much.

• 27:32Speaker 12

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• 28:39Rund Abdelfatah?

  Part Two: The Invasion. When World War II ended in 1945, so did President Roosevelt's use of the Alien Enemies Act. And for the rest of the 20th century, the law faded into the background, even as the United States fought in more wars, without explicit declarations of war.

• 29:01Speaker 01

  During that period, is it invoked again?

• 29:05Speaker 10

  It is not.

• 29:06Speaker 01

  Daniel Tishner is a professor of political science at the University of Oregon.

• 29:11Speaker 13

  So after World War II, for the rest of the 20th century, it's not invoked again at all?

• 29:19Speaker 01

  And why not?

• 29:21Speaker 10

  Good question. I mean, it may be that this 18th century obscure law just faded into the woodwork as being something that was, you know, a relic of the past. Clearly, Congress and presidents had all kinds of control powers over non-citizens that they could use that didn't require invoking this legislation. So for instance, Dwight Eisenhower in the 1950s ordered a mass deportation of undocumented immigrants. And, you know, it was a huge dragnet raid that involved, you know, US military, local police, state troopers and so forth, and tens of thousands of mostly Latinee

• 30:10Speaker 10

  Folks were rounded up, put on buses and driven across the Mexican border. It turned out that a number of those folks were Mexican-American citizens. Some of them were legal permanent residents. They were not undocumented and so forth. And so some of them were legal preseros. But that's an example where, you know, he, he, um, you know, was able to, to basically push a button from the Oval Office and do it. And did, did so without invoking, um, this legislation. It was basically ideal was these are individuals who were suspect of being unauthorized in US territory. Therefore, um, in my enforcement powers as president, I am doing so.

• 30:51Speaker 13

  To me, there's something really striking about the fact that there was so much both covert and explicit power that the executive had, that these intelligence agencies had, that these things could happen. And you didn't even need to invoke, as you say, like this dusty law from the 18th century. So I, it, it makes me wonder, why is it that now, you know, March 2025, we suddenly hear about the Alien Enemy Act all of a sudden after decades?

• 31:23Speaker 10

  My sense is that as the, the Trump team was preparing to enter office, they viewed this law and its powers for presidents as an, as a way to streamline the process of removing non-citizens. And so, you know, basically it's like deportation on rocket power. Non-citizens have at least some due process, uh, you know, possibility of having a day in court if they face detention and removal. And what the Alien Enemies Act does is it says, the president acting on behalf of keeping us safe, on behalf of national security, in repelling a foreign attack or, uh, in active

• 32:08Speaker 10

  warfare, has the capacity on a collective behalf to just remove you point blank, end of story.

• 32:15Speaker 01

  And something's sticking in my head here that you said earlier when we're talking about the actual Alien Enemies Act and what it says. And this term that Ron brought up, invasion. How is invasion being used right now to kind of justify the use of the Alien Enemies Act?

• 32:33Speaker 10

  The argument that I think the administration is making is that Latin American governments are run by drug cartels and criminal organizations that are launching state sanctioned invasions of narcotics and unauthorized migrants into the country. The key here, because it goes back to the law, the law is saying either declared war or a foreign government launching an invasion. And so the key here legally would be to say, we are invoking, we as the Trump administration are invoking this because these Latin American governments basically are under the thumb

• 33:17Speaker 10

  of these kind of criminal operations and cartels and so forth. And so that these narcotics and unauthorized immigrants are in fact their invasion forces. And thus, we have the right to repel it. The key arbitrator in this is going to be the courts. The reality is that, as we've noted, it's only been during, only three times it's been used, has been during declared wars in the past. And so a lot of this comes down to whether the court wants to intervene or not, whether the Supreme Court is going to basically decide that a president's identification of an invasion

• 34:02Speaker 10

  by a foreign nation is determinative, or whether it's subject to judicial review. And you know, the Supreme Court's history on this has been uneven. We talked only a moment ago about the Japanese internment case in Korematsu versus the United States, which was decided in 1944. The court basically gave a president a blank check. In terms of of Japanese internment. And there's even another chilling decision than the Kirin decision that had to do with German saboteurs who FDR seized and had tried by a military tribunal. And in both cases, the court privately had lots of misgivings and lots of questions about the constitutionality,

• 34:46Speaker 10

  but ultimately decided that during this time of life or death of World War II, that the president had to be given that discretion. And at the time, one of the dissenting judges in that Japanese internment, Korematsu case, Justice Robert Jackson said, when you give a president this amount of power, unrestrained power, it's like leaving a loaded weapon on the desk of the Oval Office. Now, fast forward to post 9/11. George W. Bush's presidency. We have a lot of Guantanamo Bay detainees. And the Bush administration's initial plan was to have military tribunals.

• 35:29Speaker 10

  And the Supreme Court said no. That there were due process rights that had to be followed in that. So the court, in World War II, said, the president has extraordinarily broad prerogative powers that are unchecked to keep us safe in the name of national security. And then, in the post 9/11 period, the Supreme Court actually said, wait, there are certain fundamental due process and constitutional protections that must be maintained even when you claim it's on behalf of national security. So the question in this situation is whether this invocation of the Alien Enemies Act

• 36:11Speaker 10

  will have a court response akin to World War II or one akin to what the court did post 9/11?

• 36:18Speaker 01

  And so, just to be clear, the question that they have to answer is, can the president just decide what an invasion is and what isn't an invasion? And if they say yes, then will any of this matter? Any of this historical context?

• 36:34Speaker 10

  Yeah, I mean, if they say yes, then there's no restraint. And Robert Jackson would say, I told you so.

• 36:40Speaker 01

  Wow.

• 36:40Speaker 10

  The Constitution, from the very beginning, in Article 2, gave presidents broad unilateral powers when it came to guarding the national security. So in a sense, it's sort of in the DNA of that institution and an opening for exercising this kind of authority. That logic creates the possibility that a president can do almost anything in the name of national security. The flip side is Sandra Day O'Connor, in the subsequent Military Tribunal case in the early 2000s, said, no, there are certain constitutional rights

• 37:23Speaker 10

  and protections that are sacrosanct, even when you invoke national security. And we will, we as a court will measure, we will try to actually judge whether, in fact, the crisis that you say requires this in fact does or not. And so that's what, I guess, we'll all find out soon.

• 37:48Rund Abdelfatah?

  Coming up, how the Alien Enemies Act evolves when the president's power grows.

• 38:02Speaker 15

  This is Jack from Springfield, Illinois, and you're listening to Throughline from NPR. Thank you for the show. I absolutely love it. Former history major, current government employee. Just absolutely love it. Love the context you bring. And I think this will be a better place if more people listen to the show. So again, thanks. Bye.

• 38:24Speaker 12

  Stay tuned for the following announcements and messages from our sponsors.

• 38:28Speaker 00

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• 39:32Rund Abdelfatah?

  Part Three: On the Desk of the Oval.

• 39:37Rund Abdelfatah?

  We spoke with University of Oregon political science professor Daniel Tishner at the end of March, about two weeks after President Trump invoked the Alien Enemies Act to deport more than 100 people who he alleged were gang members. Since then, the US Supreme Court allowed the deportations to continue while challenges to President Trump's use of the Alien Enemies Act make their way through federal courts in Texas and New York.

• 40:03Speaker 10

  And so now, the question is, what's going to happen in terms of, as this moves up the pipeline? There's two elements of this that are going to be important to watch. One is, what happens when the Supreme Court takes this up and what the court may decide, or whether it decides, again, as I mentioned earlier, to ultimately determine that it's not going to weigh in because a presidential determination of whether we're facing an invasion is determinative or not. The second part is, if the court does weigh in, the interesting thing about the Guantanamo Military Tribunal case is that the Bush administration followed That decision, adhere to it.

• 40:46Speaker 10

  What happens if the Trump administration decides it is not going to follow a Supreme Court ruling or a lower court's ruling? I mean, it's already talked about impeaching judges and so forth. And so that becomes an ultimate test because courts do not have a police force or army to implement their decisions. And, you know, there's the famous Worcester versus Georgia decision during the Jacksonian era in which the Supreme Court upheld a treaty between the United States and the Cherokee Nation, saying that they could not be forcibly removed from Georgia. And apocryphally, Andrew Jackson said, well, Mr. Marshall has made his law, now let him enforce it.

• 41:31Speaker 10

  Open question where that was actually said, but that's what happened. In essence, the Cherokee people were removed despite the court's decision because ultimately the executive decided not to implement what it had decided.

• 41:44Speaker 01

  There's a lot of, I think, anger and emotional response out from a lot of people to this invocation of the Alien Enemies Act and the deportation of the migrants and the fact that it's not clear whether the Trump administration actually listened to the court order, et cetera. But we have to say, you know, under the Obama administration, there was record numbers of deportations, many of which were questioned by immigrant rights groups around the country. What is it about this moment? Do you think that's like garnering this response outside of the rhetoric that we're hearing from the Trump administration? Because I'm sure there's an argument that in terms of numbers and in terms of rights

• 42:25Speaker 01

  violations that, you know, President Obama and President Biden also did a significant number of these kinds of acts.

• 42:33Speaker 10

  That's a great question, and I think one way to think about it is that every president in the modern era, by the stroke of a pen, can exercise enormous power over the fate of non-citizens. And so, as you said, during President Obama's time in office, he removed record numbers of individuals, and it captures the extent to which presidents, from Obama to Trump, actually can engage in dramatic levels of deportation.

• 43:16Speaker 10

  I think, on the other hand, what's distinctive about invoking the Alien Enemies Act is it removes any slight veneer of due process.

• 43:28Speaker 01

  Yes, I understand.

• 43:30Speaker 10

  That is, non-citizens who are facing deportation don't have a lot of rights, but there are some. And when the Alien Enemies Act is invoked, there's no day in court, there's no appeal, there's no delay. Essentially, it just creates an immediate act, which is why it's described as deportation on rocket power or rocket fuel.

• 44:02Speaker 01

  At least that was the case before April 7, 2025. According to a new Supreme Court ruling, detainees must now receive adequate notice that they're being removed under the Alien Enemies Act and be given an opportunity to challenge their removal.

• 44:18Speaker 13

  You mentioned the post-9/11 Guantanamo decision, and I guess I'm wondering, is there something directly connecting the Guantanamo decision then with how this act might be interpreted by the courts now?

• 44:32Speaker 10

  Yeah, I mean, prior to that War on Terror decision and the fate of the Guantanamo Bay detainees in terms of tribunals. You could point to a steady set of legal interpretations that basically endorsed presidents having completely unrestrained presidential prerogatives when it comes to war. That is, enormous emergency powers and the court basically deferred. And I think what so troubled Justice Jackson at the Korematsu decision and other decisions

• 45:11Speaker 10

  during World War II was the extent to which the court basically, to be frank, cowered in the face of presidential exercise of power on behalf of us during that existential crisis. And so what stands out about the decision post 9/11 is that it was this significant example of the court exercising clear judgment about whether there would be any restraint on presidential power in the name of national security. And I think this case puts that front and center again for us.

• 45:54Speaker 13

  You know, I think one of the things that has come up is the distinction between citizen and non-citizen. Is there a universe in which if the court, you know, determines it's fine for the permanent residency, let's say, the green card holders, the visa holders, that it will eventually also mean that citizens can be subject to deportation eventually? Is that where it leads potentially?

• 46:23Speaker 10

  You know, Donald Trump tweeted not long ago that if the president is doing something to keep us safe, it cannot be illegal. And, you know, that's actually akin to something that Richard Nixon had said in the 70s, which is if the president does something, it can't be unlawful. And the idea is then, and this goes back to kind of philosophical perspective that John Locke captured in prerogative powers, which sometimes you empower a leader to act on her behalf, even where the law is silent, and sometimes even against it, if it, in fact, serves our broader interests, especially when it comes to national security. And so I think the short answer is that that logic

• 47:09Speaker 10

  Creates the possibility that a president can do almost anything in the name of national security if the court isn't willing to engage in the kind of perspective that Sandra Day-O'Connor justified or argued for.

• 47:23Speaker 01

  Is this ultimately a story of the executive branches growing power over the last, I mean, basically since, you know, the Constitution was still initially formed? It seems to me that this is a part of a function of a, like, increasing power grab from the executive branch, regardless of what party the executive branch is represented by.

• 47:47Speaker 10

  Oh, yeah, I think that's, I think that's quite accurate. I mean, presidential scholars debate about when the modern presidency started. Some people say Teddy Roosevelt and Woodrow Wilson, because that's when you have this popular rhetorical presidency. Others say, no, no, no, it really begins with Franklin Roosevelt as he presides over the Great Depression and World War II. Whenever you want to pinpoint in it, there's no question that during the New Deal era of FDR and World War II, you have the development of a significant administrative state that is, that enormous amounts of power and authority and budget dollars and employees and programs and so forth are consolidated within the executive branch.

• 48:28Speaker 10

  And as the presidency scholar Sidney Milkus from UVA puts it, "The administrative state, the administrative presidency can be a two-edged sword, used whether you're on the left or right in that office." And so that's, that's a significant part of this. The other, on immigration in particular, what stands out is we've had lots of powerful presidents, Lyndon Johnson, you know, Ronald Reagan, others, where if you told them that the president would basically sit atop immigration governance, they wouldn't believe you. Because for most of this century, of the 20th century, Congress really was the key branch determining immigration policy, at least in terms of, you know, key legislation and so forth.

• 49:13Speaker 10

  And so Teddy Roosevelt, Woodrow Wilson, Truman, Eisenhower are all incredibly frustrated that Congress really was, was, was playing the key role. What really changed that was our partisan polarization has meant that during the 21st century,

• 49:32Speaker 10

  Congress is deeply gridlocked on immigration reform. And yes, we saw the Lake and Riley Act passed, but really, when it comes to more significant legislation, it's like waiting for Godot. That is, it's never going to arrive. We are stuck in neutral. And in that context, to fill the void, you've had state and local governments, or so-called immigration federalism, much more active. You have the courts active, but most decisively, you have presidents with lots of unilateral power involved, really, in making immigration and refugee policy in America.

• 50:08Speaker 01

  What are you most concerned about or attentive to right now about where this could be going next?

• 50:14Speaker 10

  One is that I think it's very traumatizing and chilling. The law and other kinds of draconian restrictions can be weaponized, not just in terms of who's specifically targeted by it, but has a much broader effect on the everyday lives of those who may not be targeted but are living in fear in some ways. And it takes me back to my own grandparents' experiences, where they felt like they were under intense, more intense scrutiny. My grandfather learned English well and didn't have much of an accent, but my grandmother

• 50:59Speaker 10

  had a harder time picking up the language, had more of a discernible accent, and so she didn't go out as much. She stayed inside. She wanted to stay sheltered away from this. And I think what we're seeing today has the potential, if not already, has taken place where it's that on steroids, that it just has this impact on how free people feel to live their lives.

• 51:30Speaker 01

  Daniel, thanks so much for your time. My pleasure.

• 51:38Speaker 01

  That was Daniel Tishner, political science professor at the University of Oregon and co-director of the Wayne Moore Center for Law and Politics.

• 51:49Rund Abdelfatah?

  And that's it for this week's show. I'm Rund Abdelfatah.

• 51:53Speaker 01

  And I'm Ramtin Arablouei. And you've been listening to Throughline from NPR.

• 51:58Rund Abdelfatah?

  This episode was produced by me.

• 52:00Speaker 01

  And me, and?

• 52:02Rund Abdelfatah?

  Sarah Wyman. Julie Kane.

• 52:04Speaker 01

  Lawrence Wu.

• 52:05Rund Abdelfatah?

  Anya Steinberg. Casey Minor. Kristina Kim.

• 52:08Speaker 05

  Devon Katayama.

• 52:09Rund Abdelfatah?

  Irene Noguchi. Thank you to Johannes Dergi, Edith Chapin, Colin Campbell, Tommy Evans, and Anna Yukanov.

• 52:18Speaker 01

  Fact checking for this episode was done by Kevin Vogel. The episode was mixed by Robert Rodriguez.

• 52:24Rund Abdelfatah?

  Music for this episode was composed by Ramtin and his band Drop Electric, which includes?

• 52:30Speaker 02

  Naveed Marvi. Sho Fujiwara.

• 52:32Speaker 00

  Anya Mizani.

• 52:34Speaker 01

  And finally, if you have an idea or like something you heard on the show, please write us at [email protected]. And make sure to follow us on Apple, Spotify, or the NPR app so you never miss an episode.

• 52:48Rund Abdelfatah?

  Thanks for listening.

• 52:58Speaker 00

  Stay tuned for the following announcements and messages from our sponsors.