Illegal immigration. The words alone evoke all sorts of emotions. Fear. Compassion. Hostility. Empathy. Frustration. A majority of Americans seem to agree that we have an illegal immigration issue in this country that needs to be addressed. Opinions on how to address it vary widely.
The Admin issued several Executive Orders and took a number of actions during its first 100 days to stem the tide of illegal immigration. You may have heard the Admin invoke the Alien Enemies Act of 1798 to justify some of its more aggressive actions. But does this Act do what the Admin says it does? I don’t think so.
The Alien Enemies Act Has A Troubling History
The Alien Enemies Act is a wartime act. Before this year, a sitting U.S. President had invoked the Act three times in our history: the War of 1812, World War I and World War II. During World War II, President Roosevelt used the Alien Enemies Act to justify the incarceration of 120,000 individuals of Japanese ancestry in internment camps. The vast majority were American citizens. This is widely regarded as a shameful episode in our history, when our President, our Congress and our Courts all got it very, very wrong. So wrong, in fact, that the government subsequently issued public apologies and passed laws authorizing the payment of more than $1.6 billion in reparations to more than 80,000 Japanese Americans. Given this history, we might want to look more carefully at what the Act allows.
The Alien Enemies Act Is Quite Narrow
The President can invoke the Alien Enemies Act in two circumstances: 1) when there is a “declared war”; or 2) when a foreign government threatens or undertakes an “invasion” or “predatory incursion.” In those circumstances, the President can detain or deport citizens or subjects “of the hostile government or nation” who are 14 or older. The Act does not give the President any authority to detain or deport U.S. citizens.
The U.S. is not currently at war. Under our Constitution, only Congress can declare war. Congress has made no such declaration.
There is no foreign government threatening or undertaking an invasion or predatory incursion. We have heard the President and other government officials claim that illegal immigrants are “invading” our country. However, immigrants crossing the border illegally is not the same as a foreign government making a hostile attempt to invade and take over our country.
Illegal Aliens Are Entitled To Due Process
There are also challenges to the constitutionality of the Alien Enemies Act and the manner in which it is being used. The argument goes that deporting enemy aliens without a hearing violates the due process clause in the Fifth Amendment. But from my perspective, we don’t need to get there because we have not satisfied the preconditions for invoking the Act.
Congress Needs To Act Here
The Alien Enemies Act is not the only tool in the Administration’s tool chest. The other tools generally require more time and involve more process. The Administration and perhaps some of our citizens want the deportation process to happen faster in certain circumstances. However, it is important for us to remember that ours is a country of laws, not men (or women). Under our Constitutional construct, the Congress makes the law, the President enforces the law, and the Courts interpret the law. If the Constitution and laws do not give the President the authority to do certain stuff, then it is up to Congress to pass new laws granting the President authority to do that stuff. Saving that, we can expect the Courts to continue pushing back on the President and other immigration enforcement officials when they engage in activity that is not authorized by law.