The Alien Enemies Act of 1798
Read it for yourself
On my mind, 04252025: With the current attack on our US Constitution being carried out, in part, under the guise of the 1798 Alien Enemies Act, perhaps it would be good to read this 227-year-old piece of legislation that the Brennan Center for Justice at NYU notes "may violate the Constitution in wartime and is subject to abuse in peacetime." I encourage you to scroll down and read the Act (taken from a House of Representatives website of the US Code) before you read my four comments.
Comment #1: In section 21, it is clear that this Act can only be used when there is a state of war declared between the US 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…". I am aware of no state of declared war against the United States, nor am I aware of any foreign nation perpetrating "any invasion or predatory incursion…against the United States."
Comment #2: In section 22, it is noted that "When an alien who becomes liable as an enemy, in the manner prescribed in section 21 of this title, is not chargeable with actual hostility, or other crime against the public safety, he shall be allowed (sufficient time), for the recovery, disposal, and removal of his goods and effects, and for his departure…" as stipulated by prior treaty or, if there is no treaty, "the President may ascertain and declare such reasonable time as may be consistent with the public safety, and according to the dictates of humanity and national hospitality." This Act prescribes those not charged "with actual hostility or other crime" be allowed, as the section title suggests, "Time allowed to settle affairs and depart." If criminal complaints are a concern, section 23 becomes operative.
Comment #3: In section 23, the federal courts "are authorized and it shall be their duty, upon complaint against any alien enemy resident and at large within such jurisdiction or district, to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President may have established, to cause such alien to be duly apprehended and conveyed before such court, judge, or justice; and after a full examination and hearing on such complaint, and sufficient cause appearing, to order such alien to be removed out of the territory of the United States, or to give sureties for his good behavior, or to be otherwise restrained, conformably to the proclamation or regulations established as aforesaid, and to imprison, or otherwise secure such alien, until the order which may be so made shall be performed." Judicial due process, guaranteed by Amendments 5 and 14, must be offered to these aliens to determine the veracity of the accusations against them. The courts then determine the disposition of each "Alien Enemy."
Comment #4: section 24 does create some confusion, suggesting the President has unilateral authority to order "alien enemies" apprehended and deported by US Marshals without any court action. However, we must recall section 21, which describes the President's authority to act as premised on a declared state of war between nations or the belligerent enemy nation perpetrating an invasion or predatory incursion into our nation. Without that predicating circumstance, the President has no authority. Indeed, without the predicating circumstances of declared war, invasion, or predatory incursion (by the "enemy" nation), I would argue none of the provisions of the Alien and Enemies Act of 1798 are operative.
What do you think?
50 USC Ch. 3: ALIEN ENEMIES
From Title 50—WAR AND NATIONAL DEFENSE
Passed and signed into law July 6, 1798
Act Apr. 16, 1918, struck out provision restricting this section to males.
CHAPTER 3—ALIEN ENEMIES
§21. 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 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 which are found necessary in the premises and for the public safety.
§22. Time allowed to settle affairs and depart
When an alien who becomes liable as an enemy, in the manner prescribed in section 21 of this title, is not chargeable with actual hostility, or other crime against the public safety, he shall be allowed, for the recovery, disposal, and removal of his goods and effects, and for his departure, the full time which is or shall be stipulated by any treaty then in force between the United States and the hostile nation or government of which he is a native citizen, denizen, or subject; and where no such treaty exists, or is in force, the President may ascertain and declare such reasonable time as may be consistent with the public safety, and according to the dictates of humanity and national hospitality.
§23. Jurisdiction of United States courts and judges
After any such proclamation has been made, the several courts of the United States, having criminal jurisdiction, and the several justices and judges of the courts of the United States, are authorized and it shall be their duty, upon complaint against any alien enemy resident and at large within such jurisdiction or district, to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President may have established, to cause such alien to be duly apprehended and conveyed before such court, judge, or justice; and after a full examination and hearing on such complaint, and sufficient cause appearing, to order such alien to be removed out of the territory of the United States, or to give sureties for his good behavior, or to be otherwise restrained, conformably to the proclamation or regulations established as aforesaid, and to imprison, or otherwise secure such alien, until the order which may be so made shall be performed.
§24. Duties of marshals
When an alien enemy is required by the President, or by order of any court, judge, or justice, to depart and to be removed, it shall be the duty of the marshal of the district in which he shall be apprehended to provide therefor and to execute such order in person, or by his deputy or other discreet person to be employed by him, by causing a removal of such alien out of the territory of the United States; and for such removal the marshal shall have the warrant of the President, or of the court, judge, or justice ordering the same, as the case may be.
