Fools, Knaves, and Very Great Power
Trump’s promise to tap the Alien Enemies Act presents risks and challenges
There was no doubt Kurt Ludecke was a Nazi. He said so on the cover of his memoir, I Knew Hitler: The Story of a Nazi Who Escaped the Blood Purge. While smoke still rose from the rubble that the Japanese left at Pearl Harbor, federal officials arrested Ludecke on December 8, 1941. A German citizen who had once been Hitler’s close confidante, Ludecke was an easy target for arrest. The Alien Enemies Act allowed the president to permit the arrest and deportation of any citizen of a nation at war with the United States. Ludecke’s book had made him among the most famous German citizens in the United States. The United States was now at war with Japan and three days later it would be at war with Germany and Italy.
Soon courts may have to decide how far the Alien Enemies Act wanders from war. Campaigning to return to the White House, President Trump promised to invoke the law. So far, he hasn’t.
Enacted in 1798 as part of a small amount of federal activity regulating the movement of people across international borders, the Alien Enemies Act was used during the War of 1812 and both world wars. During World War II, President Franklin Roosevelt used it to target citizens of Japan and Italy alongside Germans like Ludecke. Anyone born in these countries, Roosevelt announced in December 1941, was an “enemy alien” who the Justice Department could detain.
Importantly, the Alien Enemies Act didn’t serve as the basis for the mass detention of Japanese residents across the West and Mountain West. Instead, that infamous chapter in U.S. history was authorized by an executive order that Roosevelt signed in February 1942 and a statute that Congress enacted the following month.
Eight decades after it was last used, the Alien Enemies Act continues to give the president remarkable power to arrest and deport people who haven’t violated immigration law. On its face, the law seems to allow the president to issue a proclamation ordering the arrest and deportation of people who are at least fourteen years old and have not become U.S. citizens through naturalization if they were born in or are citizens of a country that is at war with the United States. The law also allows the arrest and deportation of citizens and natives of a country that has launched an “invasion or predatory incursion” against the United States.
On his first day back in the White House, President Trump announced that “an invasion is ongoing at the southern border.” Republicans have embraced the view that migration is an invasion for a few years. While Biden was president, lawyers for Texas defended a floating barbed-wire barrier that it strung up along the Río Grande River on the grounds that migrants were invading it.
Clearly the United States is not engaged in a traditional military conflict with migrants. Courts that have interpreted a little-known part of the U.S. Constitution that requires the federal government to protect the states from invasion have explained that the term means “armed hostility” or “military invasion.”
Ultimately, that might not matter much because courts are reluctant to impose judicial oversight on a president’s use of the Alien Enemies Act. The statute “confers on the president very great discretionary powers,” Chief Justice John Marshall wrote in 1814. When Ludecke’s case reached the Supreme Court in 1948, Justice Felix Frankfurter explained that the statute “preclude[s] judicial review.” More recently, a judge on the U.S. Court of Appeals for the Fifth Circuit, James Ho, wrote that courts shouldn’t second guess Texas Governor Greg Abbott’s conclusion that Texas is being invaded by migrants.
In the past, courts have left no doubt that the Alien Enemies Act isn’t limited to the period during which a formally declared war is ongoing. Ludecke was arrested three days before the United States and Germany declared war on each other, but the Supreme Court and U.S. Court of Appeals for the Second Circuit never doubted that his arrest was authorized by the Alien Enemies Act.
In addition, since the statute authorizes arrest and deportation, Congress couldn’t have imagined that immigration officials would deport people while bombs were dropping, courts have explained. “There is not the slightest indication in the statute that the exercise of the power is limited to times of active hostilities,” the Second Circuit wrote in 1947. “Such deportations are hardly practicable during the pendency of what is colloquially known as the shooting war,” echoed Justice Frankfurter when Ludecke’s case reached the Supreme Court.
Broad on its terms, and even more as courts have applied it during past conflicts, courts might nonetheless impose some limits on any attempt by Trump to wield the Alien Enemies Act’s power. Since the last time a president used the law, courts have developed a much fuller understanding of constitutional obstacles to arresting and deporting people. In 1950, Justice Robert Jackson, who had taken leave from his job at the Supreme Court to prosecute captured Nazi leaders in Nuremberg, explained that the statute allows courts to “ascertain the existence of a state of war and whether he is an alien enemy.” To do this, government officials would first have to create a process by which to decide who is subject to arrest and deportation under the Alien Enemies Act.
Even then, the government would need to contend with the many other legal rights that Congress has created since World War II. Most federal immigration laws that currently exists were enacted since then, suggesting that Congress wants the broad power that the Alien Enemies Act confers on the president to be cabined by the complicated array of options that the Immigration and Nationality Act gives people to live and work freely in the United States. Indeed, in response to World War II, diplomats, academics, and policymakers in the United States helped create the modern asylum regime that exists worldwide, and in 1980 Congress added that legal right to the Immigration and Nationality Act.
Despite the legal changes that have occurred since a president last used the Alien Enemies Act, a court case from early in the nation’s history reveals the immense risk that the law creates. In 1798, residents of rural Pennsylvania who had been born in Germany but some of whom probably met the naturalization requirements for U.S. citizenship began to violently resist enforcement of a law assessing their property based on the number and size of windows.
Weighing in on the legality of arresting some of the rebellious leaders, Supreme Court Associate Justice James Iredell made clear that the Alien Enemies Act was broad. Congress assumed, Iredell wrote, that the laws it enacts
“are to be administered by men of common sense and common honesty. In our country, as all ultimately depends on the voice of the people, they have it in their power, and it is to be presumed they generally will choose men of this description; but if they will not, the case, to be sure, is without remedy. If they choose fools, they will have foolish laws. If they choose knaves, they will have knavish ones.”
Two centuries later, his words are as relevant as ever.