The 225-year-old ‘Alien Enemies Act’ Needs to Come Out of Retirement

Summary

• The Trump campaign has called for the invocation of the “Alien Enemies Act” (“AEA”) to “remove all known or suspected gang Members, drug dealers, or Cartel Members from the U.S.”
• The AEA was enacted in 1798 in reaction to a feared invasion by France, then in the throes of the infamous French Revolution. The Justice Department has explained that “One of the measures of protection found by every nation to be most necessary in time of war is the guarding against internal enemies whose operations are more insidious, and therefore, more dangerous ... in many cases, than are the active maneuvers of military forces ... . An army of spies, incendiaries, and propagandists may be more dangerous than an army of soldiers.”
• Unlike the other “Alien and Sedition Acts” of 1798, the AEA received wide bipartisan support, including that of Thomas Jefferson and James Madison, implacable opponents of the other Acts.
• The AEA is still good law, providing that “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 ... all natives, citizens, denizens, or subjects of the hostile nation or government [at least 14 years old and not having become naturalized U.S. citizens] ... shall be liable to be apprehended, restrained, secured, and removed as alien enemies.”
• The federal government has utilized the Act during the War of 1812 and during World Wars I and II (when the U.S. detained thousands of alien enemies and removed over a thousand).
• Numerous federal courts, up to and including the Supreme Court, have upheld the AEA’s constitutionality.

• Can the AEA be used to detain and remove foreign gang and cartel members? Two primary legal obstacles would have to be overcome:

  • First, the activities of the gangs and cartels would have to qualify as an “invasion” of, or “predatory incursion” into, the U.S. But, the AEA was conceived of as a response to a traditional conflict between nations. And federal courts have so far been resistant to considering illegal immigration an “invasion” for purposes of the Constitution’s requirement that “The United States ... shall protect each of [the States] against Invasion.”
  • Second, the AEA can only be triggered by a declared war, or an invasion or incursion by a foreign nation or government. Could the criminal acts in the U.S. of foreign gangs and cartels be considered as carried out by foreign nations or governments? This would be an uphill climb in federal court. Common definitions of these terms would seem to provide a negative answer. However, Moisés Naím has documented the rise of “mafia states”, nations in which “criminals have penetrated governments to an unprecedented degree” and “rather than stamping out powerful gangs”, the “governments have instead taken over their illegal operations” with “government officials enrich[ing] themselves ... while exploiting the money, muscle, political influence, and global connections of criminal syndicates to cement and expand their own power”. This has “blurr[ed] the conceptual line between states and nonstate actors”. In such situations, a powerful argument might be made that gang or cartel crimes in the U.S. (if rising to the level of an invasion or predatory incursion) have been carried out by foreign governments.
• The President should certainly consider use of the AEA as a valuable war-fighting tool during future conflicts, including any possible war initiated by the People’s Republic of China. There are currently almost 300,000 PRC nationals going to college in the U.S. on student visas — one third of all foreign students. Many are engaged in intelligence gathering on campus (especially regarding militarily valuable technologies) at the direction of the PRC. In case of war, there would be no feasible legal means other than the AEA of detaining and removing large numbers.

Introduction

One of our most neglected immigration enforcement statutes is also the oldest. President John Adams signed “An Act respecting Alien Enemies” (the “Alien Enemies Act” or “AEA”) into law on July 6, 1798. The AEA steeled America for a feared invasion by France, then in the throws of the French Revolution. As Gregory Fehlings has explained, the AEA “authorize[s] the President to arrest, indefinitely detain, and remove alien enemies en masse, without hearing” during wartime. It has the distinction of being the sole component of the oft-reviled “Alien and Sedition Acts” that has neither been repealed nor allowed to sunset. Further, even the bitterest opponents of the other Acts, including Thomas Jefferson and James Madison, felt the AEA to be both necessary and constitutional. The AEA’s constitutionality has been upheld without exception by federal courts, and the Supreme Court noted in 1948 in Ludecke v. Watkins that it “has remained the law of the land, virtually unchanged since 1798”.

The federal government relied on the law during the War of 1812, in World War I, and in World War II. There were “about one million alien enemies in the country at the beginning of [WWII]”¹ and, as of the end of 1945, 3,165 resident alien enemies were interned, 4,908 were on parole, 2,470 had been unconditionally released, and 1,379 had been repatriated during the fiscal year. However, the AEA has fallen out of the national consciousness, that of the public through disuse, and that of immigration lawyers and officials possibly because it is not found in the Immigration and Nationality Act (“INA”) or even in Title 8 of the U.S. Code (“Aliens and Nationality”), but in Title 50 (“War and National Defense”). I have to admit that I myself did not know of its existence until reading tweets earlier this summer by Stephen Miller — “Huge. Trump pledging to invoke Alien Enemies Act to remove the cartel invaders from the United States” — and by Team Trump — “Invoke the Alien Enemies Act to remove all known or suspected Gang Members, drug dealers, or Cartel Members from the U.S.” Stef Kight reported in August that Trump “is eying the [AEA] ... . [He] wants to use the often-overlooked law to quickly remove smugglers and migrant criminals — without having to go through legal steps in ICE’s deportation process — by claiming an ‘invasion’ at the border and labeling certain nationalities ‘alien enemies.’” Oh, and Kight adds that “That almost certainly would draw legal challenges.” You think?!

In this report, I will analyze the AEA, the 5th Congress’ intent in passing the landmark measure in the context of the threat from France, its reception by federal courts, and its subsequent use. I will also consider how the AEA might serve the country in our current and future national security crises, and whether it can in fact be utilized against alien criminals and gang and cartel members.

France, from Friend to Enemy

One of the immigration laws I worked on for the House Judiciary Committee’s Immigration Subcommittee was private legislation enacted in 2002 to posthumously grant Marie Joseph Paul Yves Roche Gilbert du Motier, the Marquis de Lafayette, the French hero of our Revolutionary War, honorary citizenship. As the legislation stated:

[The Marquis de Lafayette] voluntarily put forth his own money and risked his life for the freedom of Americans ... was wounded at the Battle of Brandywine, demonstrating bravery that forever endeared him to the American soldiers ... secured the help of France to aid the United States’ colonists against Great Britain ... [and] gave aid to the United States in her time of need and is forever a symbol of freedom[.]

The legislation also noted that upon the Marquis’ death, “both the House ... and the Senate draped their chambers in black as a demonstration of respect and gratitude for his contribution to the independence of the United States”.

But after the American Revolution came the French Revolution. The State Department’s Office of the Historian has written that:

When the first rumors of political change in France reached American shores in 1789, the U.S. public was largely enthusiastic. Americans hoped for democratic reforms that would solidify the existing Franco-American alliance and transform France into a republican ally against ... Britain. However, with revolutionary change also came political instability, violence, and calls for radical social change in France that frightened many Americans.

Fehlings has written that “France had proclaimed itself a revolutionary republic, beheaded its king in 1793, and executed 17,000 people in eleven months.” Per the Office of the Historian:

American political debate over the nature of the French Revolution exacerbated pre-existing political divisions ... . Secretary of State Thomas Jefferson became the leader of the pro-French Democratic-Republican Party that celebrated the republican ideals of the French Revolution. Secretary of the Treasury Alexander Hamilton led the Federalist Party, which viewed the Revolution with skepticism and sought to preserve existing commercial ties with Great Britain.

Fehlings has similarly explained that:

Passions concerning the French Revolution split early American politics. Having endured Shay's Rebellion and the Whiskey Rebellion, Federalists saw much to fear in the French Revolution. On the other hand, Democratic-Republicans, led by Thomas Jefferson, proudly supported [it] as progeny of the American Revolution. Jefferson wrote he preferred to see “half the world desolated” than see the French Revolution falter. Democratic-Republicans, constant to the temper of the American Revolution, viewed Britain as a perpetual enemy. Conversely, the Federalists regarded Britain as a bulwark against French militancy.

James Madison wrote to Jefferson complaining of (Federalist) President John Adams:

[President Adams] remarked to me, “that there was not a single principle the same in the American & French Revolutions;” & on my alluding to the contrary sentiment of his predecessor ... added, “that it was false let who would express it.” The abolition of Royalty was it seems not one of his Revolutionary principles.

Then came war clouds. Fehlings wrote:

• Following “The Terror,” the French Directory, a ruling council of five directors, assumed power in 1795. When Presidents George Washington and John Adams refused to allow the United States to be dragged into France's wars against Great Britain and other European powers, the Directory launched a retaliatory war of commercial plunder against America. The French seized over 2,000 American merchant ships during the war.

• Congress became alarmed over growing French hostility ... and the potential for ... invasion and insurrection. John Quincy Adams, President Adams’ son and U.S. Ambassador to Prussia, advised his father that France intended to invade America's western frontier. The Speaker of the House ... speculated publicly that troops already massed in French ports were destined for America. Innumerable others thought a French invasion imminent. To oppose such an invasion, President Adams summoned ... George Washington from retirement to command the United States Army.

  Federal officials feared parts of America were rife with French agents and sympathizers who might rise up in support of an invasion ... . Washington anticipated that, if the French invaded ... they would invade the Southern states “because they will expect ... to find more friends there.”

As the Federalists argued a few years later in their Pamphlet Regarding the Constitutionality of Alien and Sedition Laws, 1799:

[T]he most powerful nation in Europe, by whose insidious policy and numerous armies, populous, warlike, and wealthy states, have been overturned, whose lust of dominion is insatiable, an whose only rule of conduct is her will, has demanded tribute at our hands, and menaced us with the fate of nations conquered and debased.²

Were such fears legitimate? Gregory Fehlings has concluded that:

• Some have dismissed the widespread fears of French intrigue and invasion in 1798 as irrational ... xenophobia. [H]owever ... [in 1793] the French charge d'affaires to America, Edmond Charles Genet, had tried to undermine President Washington's proclamation of American neutrality ... between France and Britain ... [c]ommission[ing] American privateers to prey on British shipping, recruit[ing] Americans to fight for France, and prepar[ing] to launch a naval invasion of Canada from the United States. After France recalled Genet at Washington's insistence, the Directory plotted against the Federalist administration. “We must raise up the people and at the same time conceal the lever by which we do so,” confided [the] Minister of Foreign Relations, to the Directory ... . He urged that the succeeding French charge d’affaires “use all the means in his power in the United States to bring about a successful revolution and Washington's replacement.”... France campaigned against Vice President Adams and in favor of Thomas Jefferson during the presidential campaign of 1796 ... . Following President Adams’ inauguration, at which he denounced foreign meddling in American politics, the Directory expelled the U.S. minister to France, severing its relations with the United States.

• [France] dispatched [Constantin] Volney as a spy in 1793 on the pretext of conducting a scientific expedition of the Mississippi valley. In reality, his mission was to determine whether political conditions favored a French takeover of Louisiana.

• The French charge d'affaires in Philadelphia commissioned [French General George Victor] Collot in 1796 to reconnoiter the Ohio and Mississippi rivers and to assess secessionist sentiment among American frontiersmen. Collot traveled the rivers with a sketchbook, mapping the terrain for future military operations. He envisioned a French Louisiana empire that would stretch from the Allegheny Mountains to the Rockies, including territory then owned by the United States and Spain. The French Directory, acting on Collot's recommendations, sent agents among the American Indians urging them to take to the warpath against American settlers to prevent U.S. occupation of lands France secretly planned to acquire for itself.

• Rioting broke out in the nation's capital during the undeclared war with France. “The multitude in Philadelphia, as it was,” related President Adams coarsely, “were almost as ripe to pull me out of my house as they had been to dethrone Washington in the time of Genet.” The Governor of Pennsylvania reacted to the threat by mobilizing the state militia to restore order. Adams wrote[:]

  We were then at war with France. French spies then swarmed in our cities and our country; some of them were intolerably impudent, turbulent and seditious.

What a difference 200 years makes. Now we only have to worry about intolerably impudent French waiters.

The Enemy Within

Why was there such widespread agreement on the need to detain and remove aliens from enemy nations? During World War I, Assistant Attorney General Charles Warren argued in defense of the AEA that:

One of the measures of protection found by every nation to be most necessary in time of war is the guarding against internal enemies whose operations are more insiduous, and therefore, more dangerous to the common weal, in many cases, than are the active maneuvers of military forces. The very presence of enemy subjects in the land may constitute a potentiality of danger which must be guarded against, even before such persons become an active danger. Such persons may have been sent into the country for the very purpose of spreading sedition and of deceiving our own people by indirect propaganda and suggestion. An army of spies, incendiaries, and propagandists may be more dangerous than an army of soldiers.

In 1799’s Case of Fries, the Circuit Court for the District of Pennsylvania explained that:

• Nothing is more common than to order away, on the eve of a war, all aliens or subjects of the nation with whom the war is to take place. Why is that done, but that it is deemed unsafe to retain in the country men whose prepossessions are naturally so strong in favour of the enemy that it may be apprehended they will either join in arms or do mischief by intrigue in his favour?

• In cases like this it is ridiculous to talk of a crime; because perhaps the only crime that a man can then be charged with is his being born in another country and having a strong attachment to it. He is not punished for a crime that he has committed, but deprived of the power of committing one hereafter to which even a sense of patriotism may tempt a warm and misguided mind.

• The opportunities during a war of making use of men of such a description are so numerous and so dangerous that no prudent nation would ever trust to the possible good behavior of many of them.

A British court explained during the First World War that:

This war is not being carried on by naval and military forces only. Reports, rumours, intrigues play a large part. Methods of communication with the enemy have been entirely altered and largely used. I need only refer to wireless telegraphy, signaling by lights, and the employment on a scale hitherto unknown of carrier pigeons ... . [A] German civilian in this country may be a danger in promoting unrest, suspicion, doubts of victory, in communicating intelligence, in assisting in the movements of submarines and Zeppelins — a far greater danger, indeed, than a German soldier or sailor.

Carrier pigeons? What a difference 100 years makes!

In any event, the Supreme Court explained in 1950 in Johnson v. Eisentrager that:

• Modern American law has come a long way since the time when outbreak of war made every enemy national an outlaw, subject to both public and private slaughter, cruelty and plunder. But even by the most magnanimous view, our law does not abolish inherent distinctions recognized throughout the civilized world between citizens and aliens, nor between aliens of friendly and of enemy allegiance.

• The security and protection enjoyed while the nation of [an alien’s] allegiance remains in amity with the United States are greatly impaired when his nation takes up arms against us. While his lot is far more humane and endurable than the experience of our citizens in some enemy lands, it is still not a happy one. But disabilities this country lays upon the alien who becomes also an enemy are imposed temporarily as an incident of war and not as an incident of alienage ... .

  American doctrine as to effect of war upon the status of nationals of belligerents took permanent shape following our first foreign war. [In 1819,] Chancellor Kent, after considering the leading authorities of his time, declared the law to be that “... in war, the subjects of each country were enemies to each other, and bound to regard and treat each other as such.”... If this was ever something of a fiction, it is one validated by the actualities of modern total warfare. Conscription, compulsory service and measures to mobilize every human and material resource and to utilize nationals -- wherever they may be -- in arms, intrigue and sabotage, attest the prophetic realism of what once may have seemed a doctrinaire and artificial principle. With confirmation of recent history, we may reiterate this Court's earlier teaching that in war “every individual of the one nation must acknowledge every individual of the other nation as his own enemy -- because the enemy of his country.”… And this without regard to his individual sentiments or disposition…. The alien enemy is bound by an allegiance which commits him to lose no opportunity to forward the cause of our enemy; hence the United States, assuming him to be faithful to his allegiance, regards him as part of the enemy resources. It therefore takes measures to disable him from commission of hostile acts imputed as his intention because they are a duty to his sovereign.

And the Court pointed out that:

The United States does not invoke this enemy allegiance only for its own interest, but respects it also when to the enemy's advantage. In World War I our conscription act did not subject the alien enemy to compulsory military service ... . [T]he alien enemy status carries important immunities as well as disadvantages. The United States does not ask him to violate his allegiance or to commit treason toward his own country for the sake of ours.

The “Alien Friends Act”

Fehlings has noted that “To counter the[] threats [from France], Congress took the unprecedented step [for the federal government] of enacting legislation restricting immigration.” He explained:

• Within a four-week period in the summer of 1798, Congress enacted four statutes (the Alien Act, [the AEA], Naturalization Act, and Sedition Act) that became known collectively as the Alien and Sedition Acts. Three ... were directed expressly at aliens ... . Fear that the French Revolution would spread to America and unrestrained political partisanship by the Federalists led to the enactment of the excessive and unconstitutional Sedition Act [which punished “false, scandalous and malicious ... writings against the [federal] government, ... or either house of the Congress ... or the President ... with intent to defame ... or to bring them ... into contempt or disrepute; or to excite against them ... the hatred of the good people of the [U.S.], or to stir up sedition ... or to excite any unlawful combinations ... for opposing or resisting any law” of the United States].

• Congress passed the Alien Act as a temporary war measure to expel selectively those aliens who posed a threat to America. The Alien Act was to [and did] expire in two years.

• Congress modeled the Alien Act after the British Aliens Act of 1793, which authorized the expulsion of any alien considered dangerous. The Democratic-Republicans called [it] the “Alien Friends Act” - not for its benevolence to aliens but rather to distinguish it from the [AEA] which drew bipartisan support.

The “Alien Act”, actually the “Act Concerning Aliens” (which I shall call the “Alien Friends Act” (“AFA”) in deference to the Democratic-Republicans), was enacted on June 26, 1798 and provided in part that:

• [I]t shall be lawful for the President of the United States at any time during the continuance of this act, to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof, to depart out of the territory of the United States, within such time as shall be expressed in such order ... . And in case any alien, so ordered to depart, shall be found at large within the United States after the time limited in such order for his departure, and not having obtained a license from the President to reside therein, or having obtained such license shall not have conformed thereto, every such alien shall, on conviction thereof, be imprisoned for a term not exceeding three years, and shall never after be admitted to become a citizen of the United States. [Emphasis added, except that underlined text is emphasized in the original.]

• [I]t shall be lawful for the President of the United States, whenever he may deem it necessary for the public safety, to order to be removed out of the territory thereof, any alien who may or shall be in prison in pursuance of this act; and to cause to be arrested and sent out of the United States such of those aliens as shall have been ordered to depart therefrom and shall not have obtained a license as aforesaid, in all cases where, in the opinion of the President, the public safety requires a speedy removal. And if any alien so removed or sent out of the United States by the President shall voluntarily return thereto, unless by permission of the President .., such alien on conviction thereof, shall be imprisoned so long as, in the opinion of the President, the public safety may require. [Emphasis added.]

The Federalists wrote defensively of the AFA in the Pamphlet Regarding the Constitutionality of Alien and Sedition Laws, 1799 that:

It [is] fairly deductible, from the theory of the constitution ... that the power of protecting the American commonwealth against dangerous aliens, whether dispersed through the interior of our country, or embodied in arms against us; is an existing efficient power placed in all others necessary for the common safety in the only hands which can bring it into complete beneficial operation.

However, the AFA was vociferously denounced by Jefferson and Madison. As Fehlings has written:

[They] declared [it] unconstitutional. Writing on behalf of the Virginia and Kentucky legislatures, [they] condemned the [AFA] because they did not regard [its] targets ... French aliens and agents — as alien enemies. Madison presumed the French were alien friends and he asserted that no alien friend could be expelled unless tried and punished according to a criminal code.

Madison wrote in his Report on the Virginia Resolution that: “With respect to aliens, who are not enemies, but members of nations in peace and amity with the United States, the power assumed by [the AFA] is denied to be constitutional; and it is, accordingly, against [the AFA] that the protest of the [Virginia] General Assembly is expressly and exclusively directed.” Of course, as Fehlings pointed out, “Madison's argument would have been more influential if the aliens to be expelled ... were of a nation at ‘peace and amity with the United States.’ But France was not such a nation, even though there had been no declaration of war.”

Madison wrote to Jefferson that:

The Alien bill proposed in the Senate is a monster that must forever disgrace its parents. I should not have supposed it possible that such an one could have been engendered in either House, & still persuade myself, that it cannot possibly be fathered by both. It is truly to be deplored that a standing army should be let in upon us by the absence of a few sound votes. It may however all be for the best. These addresses to the feelings of the people from their enemies may have more effect in opening their eyes, than all the arguments addressed to their understandings by their friends.

Harvard Law School’s Professor Nikolas Bowie and Norah Rast have written that: “[T]he opposition to the [AFA] helped inspire a ‘mighty wave of public opinion’ that crushed the Federalist Party in the 1800 elections. The victorious new president, Thomas Jefferson, soon promised French émigrés that the federal government would never engage in similar behavior again.” The AFA was allowed to expire.

The “Alien Enemies Act”

In regards to the aliens it addressed, the AEA is more sweeping than was the AFA. As Fehlings has written, “While the [AFA] allowed the President to expel selectively those aliens who posed a threat and provided a hearing at the alien's request, the [AEA] authorized the President to arrest, indefinitely detain, and remove alien enemies en masse, without hearing.”

The AEA is currently located at sections 21-24 of Title 50. Section 21 provides that:

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 incursion³ 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,⁴ 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. [Emphasis added.]

Section 22 provides that:

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.

Section 23 provides that:

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.

Section 24 provides that:

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.

J. Gregory Sidak has written that the AEA contains “[o]ne of the most sweeping delegations of power to the President to be found anywhere”. The AEA’s sweeping nature was very quickly noted by American courts. The 9th Circuit explained in DeLacey v. United States in 1918 that:

The first reported case arising under the [AEA] is [by the Pennsylvania Supreme Court in] Lockington's Case [in 1814] ... Lockington ... had refused to comply with the executive order of February 23, 1813, requiring alien enemies who were within 40 miles of tidewater to retire to such places beyond that distance from tidewater as should be designated by the marshals. He was arrested, and on petition for habeas corpus attempted to test the legality of his imprisonment. Chief Justice Tilghman said of the [AEA]:

“It is a provision for the public safety, which may require that the alien should not be removed, but kept in the country under proper restraints. ... It is never to be forgotten that the main object of the law is to provide for the safety of the country from enemies who are suffered to remain within it. In order to effect this safety, it might be necessary to act on sudden emergencies. ... The President, being best acquainted with the danger to be apprehended, is best able to judge of the emergency which might render such measures necessary. Accordingly, we find that the powers vested in him are expressed in the most comprehensive terms.”

On the second petition for habeas corpus Judge Yeates said:

“When the vessel of the commonwealth is in danger, partial evils must be submitted to, in order to guard against a general wreck. Aliens who have come among us before a declaration of war against their sovereign, and continue to reside among us after it, cannot expect an exemption from such evils.”

And Judge Brackenridge said:

“Alien enemies, remaining in our country after a declaration of war, are to be treated according to the law of nations ... . Shall, then, the judicial power constitute itself a judge between the executive of the general government and the nation with whom we are at war, and say whether the proceeding in the case of their subjects remaining in our country has been according to the law of nations?”

The Federal Circuit Court for the District of Pennsylvania also honed in on the AEA’s expansive scope in 1817, concluding in Lockington v. Smith⁵ that:

[T]he power of the president ... to establish ... rules and regulations for apprehending, restraining, securing, and removing alien enemies, under the circumstances stated in th[e AEA], appears to me to be as unlimited as the legislature could make it. He alone is authorised to direct the conduct to be observed on the part of the United States towards such alien enemies, and to prescribe the manner and degree of restraint to which they should be subject; to declare in what cases, and on what terms, their residence should be permitted, and to provide for the removal of those whom he should not permit to remain in the United States, and who should refuse or neglect to depart; and, to avoid all doubt as to the extent of his power, he is authorised in general and unqualified terms, to establish any regulations which he should think necessary in the premises, and for the public safety.

Four years earlier, in Lockington’s Case, Justice Brackenridge had observed in more colorful language that “[b]y th[e AEA] ... the President would seem to be constituted, as to this description of persons, with the power of a Roman dictator or consul, in extraordinary cases, when the Republic was in danger, that it sustain no damage: ne quid detrimenti respublica capiat.

“Ne quid detrimenti respublica capiat”? Emilio Capettini has explained that:

[T]hese words ... were part of the official formula of the senatus consultum ultimum, an emergency measure used by the senate in the late Republic to respond to threats to the stability of the state: consules videant ne quid detrimenti capiat res publica — “the consuls should see to it that the state receive no harm”.

The court in Lockington v. Smith also concluded that the AEA’s general restraint powers were not limited to the context of restraint to exercise removal:

There is not, I think, the slightest ground for the argument, that every restraint or confirmement of an alien enemy is unauthorized by this law, unless it be made with a view to his removal from the United States. If this be the true construction of the act, it would follow that, however dangerous it might be, under any supposed circumstances, for alien enemies to quit the United States, possessed of information useful to the enemy, and detrimental to this nation, they must nevertheless be either sent away, or be suffered to go at large, protected spies in the service of the enemy, and possibly in the vicinity of their armies and navy ... . It seems perfectly clear, that the power to remove was vested in the President, because, under certain circumstances, he might deem that measure most effectual to guard the public safety. But he might also cause the alien to be restrained or confined, if in his opinion the public good should forbid his removal.

Bowie and Rast have written that:

Pointing to Napoleon's ongoing invasion of Egypt, the Federalists primarily defended Congress’s deportation power with the arsenal of constitutional provisions that permitted Congress to protect the nation. Article I of the Constitution empowered Congress to “declare War,” to “raise and support Armies,” and to “provide for calling forth the Militia to ... suppress Insurrections and repel Invasions,” while Article IV empowered the federal government to “protect each [State] against Invasion.”... Federalists therefore considered it “absurd ... [t]hat Congress may make war, but cannot do a less hostile act,” such as preventing “the migration of a French army” or deporting French partisans before a war began. “[T]hough there is no express authority to this effect, it is one of those things which is too evident to be doubted,” explained [Federalist] Representative [Harrison Gray] Otis of Massachusetts.

What were the 5th Congress’ expectations of the AEA? During House floor debate in May 1798, Rep. Otis, the author of the House bill, argued (per the Annals of Congress⁶) that:

[T]here may be cases where the conduct of [alien enemies] being extremely suspicious, they ought to be taken into custody, though no positive crime could be proved. Suppose a French army were to land in this country, some of these persons might show a disposition, which would warrant their imprisonment; and yet he did not know how such dispositions could be defined in this bill.

Mr. O. believed, therefore, that it would be best to vest a discretionary power in the Executive to secure and take care that these men should do no injury. And this could not be looked upon as a dangerous or exorbitant power, since the President would have the power, the moment war was declared, to apprehend the whole of these people as enemies, and make them prisoners of war. And in case of a predatory incursion, made on this country, there might be as much reason for securing some of them as in case of actual war or invasion. So that this bill ought rather to be considered as an amelioration or modification of those powers which the President already possesses, as Commander-in-Chief, and which the martial law would prove more rigorous than those proposed by this new regulation. Unless gentlemen were disposed, therefore, to suffer those men to go at large, and to carry on a correspondence with their countrymen and our enemy; unless they will consent to suffer a band of spies to be spread through the country, from one end of it to the other, who, in case of the introduction of an enemy into our country, may join them in their attack upon us, and in their plunder of our property, nothing short of the bill like the present can be effectual.

Otis also stated that:

[Mr. Otis] believed it would not be proper to wait until predatory incursions were made — until the enemy was landed in our country, or until what shall be considered as threatening or actual invasion appeared — before any steps were taken [regarding alien enemies]. He was of opinion that when an enemy authorized hostilities, that was the time to take up that crowd of spies and inflammatory agents which overspread the country like the locusts of Egypt, and who were continually attacking our liberties ... .

It is proposed by this resolution to give the President the power to remove aliens, when the country from which they come shall threaten an invasion. Some believe that this country is at present threatened with an invasion, and with a ravage of our coasts, yet others say that the despatches from our Envoys only consist of unauthorized conversations with [intermediaries of the French government] X, Y, and Z, and therefore not to be relied upon. Mr. O. thought this a more indefinite power than that which he proposed to vest in the President. His opinion was, that something ought to be done which should strike these people with terror; he did not wish to give them an opportunity of executing any of their seditious and malignant purposes; he did not desire, in this season of danger, to boggle about slight forms, nor to pay respect to treaties already abrogated, but to seize these persons, wherever they could be found carrying on their vile purposes. Without this, everything else which had been done in the way of defence would amount to nothing.

However, Rep. Otis also stated that:

• [I]n a time of tranquillity, he should not desire to put a power like this into the hands of the Executive; but, in a time of war, the citizens of France ought to be considered and treated and watched in a very different manner from citizens of our own country.

• The [AEA] would doubtless be exercised with discretion. There might be Frenchmen in this city and others (and he doubted not there were) who were peaceable, well-disposed persons, and against whom it never could be thought necessary to exercise this power; but there were other persons, not only in this city, but in others, who have not only been extremely instrumental in fomenting hostilities against this country, but also in alienating the affections of our own citizens; and it was men of this description whom he wished to remove from the country.

• [T]he President would doubtless suffer all such persons to remain in the country as demeaned themselves peaceably; but when they discovered a contrary spirit, he would treat them accordingly.

Also during House floor debate, Federalist Rep. Samuel Sewell of Massachusetts stated:

In the event of a war with France, all her citizens here will become alien enemies, but neither this bill, nor common sense, would consider them as offenders. They may be offenders, but not because they are alien enemies, nevertheless it is necessary to provide for the public safety, and in all countries there is a power lodged somewhere for taking measures of this kind. In this country, this power is not lodged wholly in the Executive; it is in Congress. Perhaps, if war was declared, the President might then, as Commander-in-Chief, exercise a military power over these people; but it would be best to settle these regulations by civil process ... . The intention of this bill is to give the President the power of judging what is proper to be done, and to limit his authority in the way proposed by the bill. In many cases, it would be unnecessary to remove or restrict aliens of this description; and he believed it would be impossible for Congress to describe the cases in which aliens or citizens ought to be punished, or not; but the President would be able to determine this matter by his proclamation.

Jefferson, Madison, and the Democratic-Republicans on the AEA

Sixth Circuit Judge Karen Nelson Moore has noted that “The concept that certain classes of aliens, and in particular those aliens properly classified as ‘enemies’ of the United States, are due different treatment under the Constitution dates back to the writings of James Madison.”

The Supreme Court explained in 1948 in Ludecke that:

[W]hile the ... Alien and Sedition Acts ... were vigorously and contemporaneously attacked as unconstitutional, there was never any issue raised as to the validity of the [AEA]. James Madison, in his report on the Virginia Resolutions, carefully and caustically differentiated between friendly and enemy alien legislation, as follows: “The next observation to be made is, that much confusion and fallacy have been thrown into the question by blending the two cases of aliens, members of a hostile nation, and aliens, members of friendly nations ... . With respect to alien enemies, no doubt has been intimated as to the Federal authority over them; the Constitution having expressly delegated to Congress the power to declare war against any nation, and, of course, to treat it and all its members as enemies.”... Similarly, Thomas Jefferson, the author of the Kentucky Resolutions of 1798 and 1799, was careful to point out that the [AFA] under attack was the one “which assumes powers over alien friends.”... There was never any questioning of the [AEA] by either Jefferson or Madison nor did either ever suggest its repeal. [Emphasis in original.]

Two years later, the Court stated explained in Eisentrager that:

[T]he members of Congress who vigorously fought the [AFA] saw no objection to the [AEA]... . In fact, Albert Gallatin, who led that opposition, was emphatic in distinguishing between the two bills and in affirming the constitutional power of Congress over alien enemies as part of the power to declare war... [I]n his report to the Virginia House of Delegates ... [James Madison] carefully and with some tartness asserted a distinction between alien members of a hostile nation and alien members of a friendly nation, disavowed any relation of the [Virginia] Resolutions to alien enemies.

Bowie and Rast have written that:

When the War of 1812 began during James Madison's presidency, he enforced the [AEA] by requiring all British subjects in America to register with federal officials and relocate away from the eastern seaboard. An incredulous John Adams scoffed at Madison's apparent hypocrisy, but the Democratic-Republicans maintained that they always believed that Congress's powers to wage a declared war were far broader than its powers merely to prevent an invasion.

This comfort with the AEA was shared by Democratic-Republicans in Congress. In fact, as Fehlings has noted: “When Congressman Otis magnanimously moved to withdraw the [AEA] after the rancorous passage of the [AFA] ... Albert Gallatin objected. Otis immediately retracted his motion, and Congress calmly passed the [AEA].”

Federal Courts on the Constitutionality of the AEA

In General

In Brown v. United States in 1814, a case regarding the seizure of enemy property during wartime, Justice John Marshall wrote for the Supreme Court that:

That war gives to the sovereign full right to take the persons and confiscate the property of the enemy wherever found, is conceded. The mitigations of this rigid rule, which the humane and wise policy of modern times has introduced into practice, will more or less affect the exercise of this right, but cannot impair the right itself. That remains undiminished, and when the sovereign authority shall chuse to bring it into operation, the judicial department must give effect to its will.

Sidak has written that the AEA’s “constitutionality was never seriously questioned contemporaneously by Jefferson or Madison, the two prominent critics of the Federalists' ignominious [AFA], or subsequently by a majority of any court”. Similarly, Judge Moore has explained that “Despite the controversy surrounding and the ultimate repeal of the contemporaneous Alien and Sedition Acts, the Supreme Court has upheld the [AEA] and it remains the law today,” and in Lopex-Aguilar v. Marion County Sheriff’s Dep’t, the U.S. District Court for the Southern District of Indiana noted in 2017 that: “The constitutionality of the [AEA], unlike its sister acts, was not seriously questioned, apparently because understood to be predicated on the Congressional war-making power.”

In 1946, the District of Columbia Circuit ruled in Citizens Protective League v. Clark⁷ that the AEA was “constitutional, both as an exercise of power conferred upon the Federal Government and as a grant of power by the Congress to the President”. The court explained that:

• If the power to remove alien enemies from its territory in time of war were not included in the powers granted the Federal Government by the Constitution, amendment to add that power would have to be made. Under no concept of government could a nation be held powerless to rid itself of enemies within its borders in time of war, whether the individuals concerned be actually hostile or merely potentially so because of their allegiance.

  Unreviewable power in the President to restrain, and to provide for the removal of, alien enemies in time of war is the essence of the [AEA] ... . However jealously we may guard the civil rights of all residents within our borders, neither those considerations nor the “dictates of humanity and national hospitality” can be permitted to impinge upon the overriding necessities of the power to wage war successfully. The President not only has the power, under the broad grants by the Congress, but has the solemn responsibility to make certain that the conduct of war is not only unimpeded but suffers from no threat of impediment.

Two years later, in Ludecke, the Supreme Court ruled that:

• The war power is the war power ... . [I]t validly supports the power given to the President by the [AEA] in relation to alien enemies. Nor does it require protracted argument to find no defect in the [AEA] because resort to the courts may be had only to challenge the construction and validity of the statute and to question the existence of the “declared war,” as has been done in this case. The Act is almost as old as the Constitution, and it would savor of doctrinaire audacity now to find the statute offensive to some emanation of the Bill of Rights.

• [W]e hold that full responsibility for the just exercise of this great power may validly be left where the Congress has constitutionally placed it — on the President ... . The Founders in their wisdom made him not only the Commander-in-Chief but also the guiding organ in the conduct of our foreign affairs. He who was entrusted with such vast powers in relation to the outside world was also entrusted by Congress, almost throughout the whole life of the nation, with the disposition of alien enemies during a state of war. Such a page of history is worth more than a volume of rhetoric.

The Court did note that “If the President had not added this express qualification [regarding dangerousness to his proclamation implementing the AEA during WWII], but had conformed his proclamation to the [AEA’s] language, presumably the Attorney General would not have acted arbitrarily but would have utilized some such implied standard as ‘dangerous’ in his exercise of the delegated power.” Was this a throw-away line, or was the Court implying in dicta that applying the AEA to aliens not found to be “dangerous” could result in constitutional infirmities? No subsequent decision has taken the bait.

Four years later, in Eisentrager, the Supreme Court expounded that:

The essential pattern for seasonable Executive constraint of enemy aliens, not on the basis of individual prepossessions for their native land but on the basis of political and legal relations to the enemy government, was laid down in the very earliest days of the Republic and has endured to this day. It was established by the [AEA] ... . [W]hile the Alien and Sedition Acts of that year provoked a reaction which helped sweep the party of Mr. Jefferson into power in 1800, and though his party proceeded to undo what was regarded as the mischievous legislation of the Federalists, th[e AEA] was never repealed. Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to war-time security. This is in keeping with the practices of the most enlightened of nations and has resulted in treatment of alien enemies more considerate than that which has prevailed among any of our enemies and some of our allies. Th[e AEA] was enacted or suffered to continue by men who helped found the Republic and formulate the Bill of Rights, and although it obviously denies enemy aliens the constitutional immunities of citizens, it seems not then to have been supposed that a nation's obligations to its foes could ever be put on a parity with those to its defenders.

The Eisentrager Court noted that:

It is certain that in the white light which beat about the subject in 1798, if there had been the slightest question in the minds of the authors of the Constitution or their contemporaries concerning the constitutionality of the [AEA], it would have appeared. None did.

"The courts, in an unbroken line of cases ... [from] Case of Fries ... in 1799 to Schwarzkopf's case in 1943, have asserted or assumed the validity of the [AEA] and based numerous decisions upon the assumption ... . The judicial view has been without dissent.

At common law “alien enemies have no rights, no privileges, unless by the king's special favour, during the time of war.” [quoting Citizens Protective League quoting Blackstone]

Constitutionality: Due Process/Judicial Review

Sidak has written that:

[The AEA] affords far less protection of individual liberty than do peacetime statutes, which guarantee that an alien will not be deported without the basic rights of due process. This difference is based on the recognition that, in wartime, the President must be able to act quickly to intern or remove persons who, taken as a class, seem likely to jeopardize the nation's security.

Assistant Attorney General Warren elaborated on this rationale in the Justice Department’s (“DOJ”) Supplemental Brief:

Inasmuch as the mere presence of the alien enemy in the country might well be found by the President to constitute a source of danger, it would be entirely futile to grant to such a alien enemy a hearing to enable him to contravert the point as to whether his presence was or was not such a source of danger. It is not only in the power of the President to act, but it is his duty to act, in such cases, frequently on suspicion, rather than on proven facts; for the purpose of the statute is largely preventative. War consists quite as much in preventing disaster from happening as in punishing or inflicting disaster upon the foe.

In Ex parte Gilroy,⁸ the District Court for the Southern District of New York concluded in 1919 that:

The purpose of the [AEA] is self-evident and it is a necessary aid to the executive arm in case of war. The authority to the President to promulgate by proclamation or public act “the manner and degree of the restraint to which they (alien enemies) shall be subject, and in what cases,” is, of course, plenary and not reviewable. Once the person is an alien enemy, obviously the course to be pursued is essentially an executive function, to be exercised in the discretion of the President.

A series of federal district court decisions during World War I made clear that “the sole question to be determined [by a court] is whether ... the petitioner comes within the description ‘natives, citizens, denizens or subjects’ of a hostile nation.”⁹ In 1946, the D.C. Circuit in Citizens Protective League stated that “The one question, whether the individual involved is or is not an alien enemy, is admitted by the Attorney General to be open to judicial determination.” The court agreed, reasoning that:

“Where, as they did here, the conditions call for the exercise of judgment and discretion and for the choice of means by those branches of the Government on which the Constitution has placed the responsibility of war-making, it is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs.” [citing the Supreme Court’s 1943 decision in Hirabayashi v. United States] As a practical matter, it is inconceivable that before an alien enemy could be removed from the territory of this country in time of war, the President should be compelled to spread upon the public record in a judicial proceeding the method by which the Government may detect enemy activity within our borders and the sources of the information upon which it apprehends individual enemies. No constitutional principle is violated by the lodgment in the President of the power to remove alien enemies without resort or recourse to the courts.

Also in 1946, the 2nd Circuit ruled in United States ex rel. Schlueter v. Watkins¹⁰ that:

We agree ... that the statute authorized the making of an order of removal of an alien enemy ... without a hearing of any kind, except on the issue of whether or not the relator actually is an alien enemy ... . When the procedure is through executive action, the statute calls for no hearing in court or elsewhere. Early in its history, the statute was so construed ... . [citing Lockington v. Smith]

...

[T]he statute ... is constitutional ... [and] did not compel a hearing which would meet the requirements of due process.

In 1948 in Ludecke, the Supreme Court swept away any doubts as to the matter of judicial review:

• As Congress explicitly recognized in the recent Administrative Procedure Act [“APA”], some statutes “preclude judicial review.”... Barring questions of interpretation and constitutionality, the [AEA] is such a statute. Its terms, purpose, and construction leave no doubt ... . That such was the scope of the Act is established by controlling contemporaneous construction [citing Brown and Lockington for the powers granted by the AEA] ... . The very nature of the President's power to order the removal of all enemy aliens rejects the notion that courts may pass judgment upon the exercise of his discretion. This view was expressed by Mr. Justice Iredell shortly after the Act was passed, Case of Fries ... and every judge before whom the question has since come has held that the statute barred judicial review. We would so read the Act if it came before us without the impressive gloss of history.

  The power with which Congress vested the President had to be executed by him through others. [On July 14, 1945, President Truman ... proclaimed ... that all alien enemies now or thereafter interned within the continental limits of the United States, “who shall be deemed by the Attorney General to be dangerous to the public peace and safety of the United States because they have adhered to the aforesaid enemy government or to the principles of government thereof, shall be subject upon the order of the Attorney General to removal from the United States and may be required to depart therefrom in accordance with such regulations as he may prescribe.” Truman] provided for the removal of such enemy aliens as were “deemed by the Attorney General” to be dangerous. But such a finding, at the President's behest, was likewise not to be subjected to the scrutiny of courts. For one thing, removal was contingent not upon a finding that in fact an alien was “dangerous.” The President was careful to call for the removal of aliens “deemed by the Attorney General to be dangerous.” But the short answer is that the Attorney General was the President's voice and conscience. A war power of the President not subject to judicial review is not transmuted into a judicially reviewable action because the President chooses to have that power exercised within narrower limits than Congress authorized.

• [R]esort to the courts may be had only to challenge the construction and validity of the statute and to question the existence of the “declared war[.]”... The additional question as to whether the person restrained is in fact an alien enemy fourteen years of age or older may also be reviewed by the court.

The decision in Ludecke generated two fiery dissents. Justice Black seethed that “the Court today sanctions a procedure whereby petitioner is to be deported without any determination of his charge that he has been denied a fair hearing.” Justice Douglas stated that:

• It is undisputed that in peacetime an alien is protected by the due process clause of the Fifth Amendment ... . Federal courts will then determine through habeas corpus whether or not a deportation order is based upon procedures affording due process of law.

• Due process does not perish when war comes. It is well established that the war power does not remove constitutional limitations safeguarding essential liberties.

In Eisentrager, the Supreme Court (though in dicta) reiterated its conclusion in Ludecke:

• The resident enemy alien is constitutionally subject to summary arrest, internment and deportation whenever a “declared war” exists. Courts will entertain his plea for freedom from Executive custody only to ascertain the existence of a state of war and whether he is an alien enemy and so subject to the [AEA]. Once these jurisdictional elements have been determined, courts will not inquire into any other issue as to his internment [citing Ludecke].

• [R]esident alien enemies] are entitled only to judicial hearing to determine ... that they are really alien enemies. When that appears, those resident here may be deprived of liberty by Executive action without hearing.

Interpreting the AEA

Can the AEA Only Be Enforced Through Federal Courts?

Sidak has written that:

This grant of jurisdiction to the courts .. . does not detract from the President's own independent power under [the AEA] to order the removal of enemy aliens. Litigation arising from the War of 1812 [Lockington’s Case] established that the Act empowers the President to order a United States Marshal to remove an enemy alien without an antecedent court order. This conclusion follows from a simple reading of section [2]4 of the [AEA], which provides that the Marshal of the district in which the enemy alien is apprehended has a duty to execute a removal order, whether it is required by “warrant of the President, or of the court, judge, or justice.”

The Circuit Court in Lockington v. Smith concluded that:

It is ... contended, that ... the judicial authority must in every instance be resorted to to enforce the[ AEA], and that the marshal can act only under such authority. Such a construction would ... be at variance with the spirit as well as with the letter of the law, the great object of which was to provide for the public safety, by imposing such restraints upon alien enemies, as the chief executive magistrate of the United States might think necessary, and of which his particular situation enabled him best to judge ... . [I]n many cases it might be highly beneficial to the public safety, to vest in the judiciary a power to enforce the ordinances of the president, in every case which should be regularly brought before it. But to bring this power into action, there must be a specific complaint against some particular individual, and a regular hearing of each case must be had. If no person will take upon himself the task of becoming an informer, at all times and under any circumstances an unpleasant one, is the public safety to be jeoparded, however imminent the president may know the danger to be? Certainly, this never could have been the intention of the legislature. If only judicial interference can be resorted to, it is most obvious that the means are altogether inadequate to the end for which the law meant to provide. But how can a construction so narrow as that contended for, consist with the unlimited powers conferred on the president? If he could not direct the marshal to confine alien enemies ... can it be said that he possesses the power to direct the conduct to be observed on the part of the United States towards alien enemies, and the manner and degree of their restraint … for the public safety? ... I do not feel myself authorised to impose limits to the authority of the executive magistrate which congress, in the exercise of its constitutional powers, has not seen fit to impose. Nothing in short, can be more clear to my mind ... than that congress intended to make the judiciary auxiliary to the executive, in effecting the great objects of the law; and that each department was intended to act independently of the other.

In United States ex rel. Schlueter v. Watkins, the 2nd Cir. ruled that:

We agree ... that the statute authorized the making of an order of removal of an alien enemy without a court order ... . [The AEA’s Sec. 24] refers, disjunctively, to executive action pursuant to Sec. 21 or to a court order. Court jurisdiction, conferred solely by Sec. 23, arises only when a “complaint” is filed by a citizen.

And in 1948, the Supreme Court concluded in Ludecke that “The fact that hearings are utilized by the Executive to secure an informed basis for the exercise of summary power [granted by the AEA] does not argue the right of courts to retry such hearings, nor bespeak denial of due process to withhold such power from the courts.”

War Without End?

As the AEA may be triggered “[w]henever there is a declared war between the United States and any foreign nation or government”, when must such a war be considered as concluded for the purpose of curtailing the president’s ability to employ AEA?

In Citizens Protective League, the D.C. Circuit concluded in 1946 that “It is not for the courts to determine the end of a war declared by the Congress.” The appellants had argued that WWII “has terminated and that, therefore, the [AEA], even if valid, is not in effect”. But the court pointed out that “No peace treaty has yet been signed with Germany, and the state of war has not been terminated by act of Congress or by Executive Proclamation.”

The following year, the 2nd Circuit ruled in United States ex rel. Kessler v. Watkins that:

• The sole question is ... whether the [AEA] limits the exercise of the power to a time of actual hostilities ... .

  The contention of the appellants that the [AEA] ceased to be applicable on the cessation of hostilities is contrary ... to those of ... Citizens Protective League and of the Seventh Circuit in United States ex rel. Hack v. Clark. ... The authority given ... to the President is not limited to situations where war is declared but includes situations where “any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government ... .” There is not the slightest indication in the statute that the exercise of the power is limited to times of active hostilities or that dangers from foreign nationals of an enemy were regarded as terminated until peace was declared. While President Truman [on] December 31, 1946 ... declared the cessation of hostilities in World War II was effective on that date, his proclamation recited that “a state of war still exists.” Likewise in Kahn v. Anderson [in 1921] the Supreme Court when dealing with Article of War 92 ... which provided that “ ... no person shall be tried by court martial for murder or rape committed within the geographical limits of the States of the Union and the District of Columbia in time of peace,” held that the term “peace” did not mean cessation of hostilities but peace in the complete sense, officially declared.

• There is no indication in the [congressional] debates or in the terms of the [AEA] that the exercise of the power, when properly invoked, should cease until peace was made, and peace has not been made in the present case. If the construction of the statute contended for by appellants’ counsel were adopted, the Executive would be powerless to carry out internment or deportation which was not exercised during active war and might be obliged to leave the country unprotected from aliens dangerous either because of secrets which they possessed or because of potential inimical activities. It seems quite necessary to suppose that the President could not carry out prior to the official termination of the declared state of war, deportations which the Executive regarded as necessary for the safety of the country but which could not be carried out during active warfare because of the danger to the aliens themselves or the interference with the effective conduct of military operations.

• Appellants’ final argument that the German Government ceased to exist after unconditional surrender and that there is, therefore, no “foreign nation or government” as to which there is a declared war, cannot be sustained. As we said in Lehigh Valley R. Co. v. State of Russia … “though the government changes, the nation remains, with rights and obligations unimpaired.”

Then, in Ludecke, the Supreme Court concluded that:

[W]e reach the claim that ... the President[’s] ... summary power under the [AEA] ... did not survive cessation of actual hostilities. This claim in effect nullifies the power to deport alien enemies, for such deportations are hardly practicable during the pendency of what is colloquially known as the shooting war. Nor does law lag behind common sense. War does not cease with a cease-fire order, and power to be exercised by the President such as that conferred by the [AEA] is a process which begins when war is declared but is not exhausted when the shooting stops ... . “The state of war” may be terminated by treaty or legislation or Presidential proclamation. Whatever the mode, its termination is a political act ... . Whether and when it would be open to this Court to find that a war though merely formally kept alive had in fact ended, is a question too fraught with gravity even to be adequately formulated when not compelled. Only a few months ago [in Woods v. Cloyd W. Miller Co.]the Court rejected the contention that the state of war in relation to which the President has exercised the authority now challenged was terminated ... . Nothing that has happened since calls for a qualification of that view. It is still true, as was said in the opinion in that case which eyed the war power most jealously, “We have armies abroad exercising our war power and have made no peace terms with our allies, not to mention our principal enemies.”... The situation today is strikingly similar to that of 1919, where this Court observed [in Hamilton v. Kentucky Distilleries & Warehouse Co.]: “In view of facts ... that the treaty of peace has not yet been concluded, that the railways are still under national control by virtue of the war powers, that other war activities have not been brought to a close, and that it can not even be said that the man power of the nation has been restored to a peace footing, we are unable to conclude that the act has ceased to be valid.”

…

The political branch of the Government has not brought the war with Germany to an end. On the contrary, it has proclaimed that “a state of war still exists.” ... The Court would be assuming the functions of the political agencies of the Government to yield to the suggestion that the unconditional surrender of Germany and the disintegration of the Nazi Reich have left Germany without a government capable of negotiating a treaty of peace. It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilities do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come. These are matters of political judgment for which judges have neither technical competence nor official responsibility.

The Court also cited Fleming v. Mohawk Wrecking & Lumber Co., in which it had ruled in 1947 that “The cessation of hostilities does not necessarily end the war power.”

The Court noted that:

Of course, there are statutes which have provisions fixing the date of the expiration of the war powers they confer upon the Executive ... . Congress can, of course, provide either by a day certain or a defined event for the expiration of a statute. But when the life of a statute is defined by the existence of a war, Congress leaves the determination of when a war is concluded to the usual political agencies of the Government.

Justice Douglas Black argued in dissent that:

• [The AEA] was passed at a time when there was widespread hostility to France on the part of certain groups in the United States. It was asserted by many that France had infiltrated this country with spies preaching “subversive” ideas and activities. Mr. Otis, the chief congressional spokesman for the measure, expressed his fears of “... a band of spies ... spread through the country ... who, in case of the introduction of an enemy ...” might join the enemy “in their attack upon us ... .” ... [This] show[s] beyond any reasonable doubt that the [AEA] was intended to grant its extraordinary powers only to prevent alien enemies residing in the United States from extending aid and comfort to an enemy country while dangers from actual fighting hostilities were imminently threatened.

• Of course it is nothing but a fiction to say that we are now at war with Germany. Whatever else that fiction might support, I refuse to agree that it affords a basis for today's holding that our laws authorize the peacetime banishment of any person on the judicially unreviewable conclusion of a single individual. The [AEA] did not grant its extraordinary and dangerous powers to be used during the period of fictional wars.

• As a justification for its interpretation of the [AEA] the Court appears to adopt the reasons advanced ... in [Kessler] ... [which] emphasized the difficulty of deportation of alien enemies during the time of actual hostility “because of the danger to the aliens themselves or the interference with the effective conduct of military operations.” This reasoning would of course be persuasive if the object of the [AEA] had been punishment of the alien enemies, but the whole legislative history shows that such was not the purpose ... . Hence [it] cannot be construed to authorize the deportation of an enemy alien after the war is over as punishment. Furthermore, the purpose of deportation ... under the [AEA], was not to protect the United States from ideas of aliens after a war or threatened invasion but to protect the United States against sabotage, etc., during a war or threatened invasion ... . But after a war is over the only “inimical activities” would relate to peacetime governmental matters — not the type of conduct which concerned those who passed the [AEA]… . [T]he executive is not powerless to send dangerous aliens out of this country, even if the [AEA] does not authorize their deportation, for there are other statutes which give broad powers to deport aliens. There is this disadvantage to the Government, however, in connection with the other deportation statutes — they require a hearing and the executive would not have arbitrary power to send them away with or without reasons. [Emphasis in original.]

Who Is a Citizen or Denizen of an Enemy Power?

As the AEA applies to “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” (emphasis added), what do these terms mean in the context of the AEA?

In United States ex rel. Schwarzkopf v. Uhl, the 2nd Circuit explained in 1943 that:

The obvious purpose of th[e AEA] was to include within its ambit all aliens who by reason of ties of nativity or allegiance might be likely to favor “the hostile nation or government” and might therefore commit acts dangerous to our public safety if allowed to remain at large. Congress selected the words “natives, citizens, denizens, or subjects” as an all inclusive description.

In the same year, the 2nd Circuit also concluded in United States ex rel. Zdunic v. Uhl that:

• The meaning of [“native, citizen, denizen, or subject”] ... presents a question of law. But whether the relator falls within one of th[ose] classes of persons ... involves questions of fact, including a determination of what rights and privileges German law accords him ... . On these and any other disputed facts he is entitled to a judicial inquiry.

• A strong argument has been made ... for the view that Congress in 1798 must have used the word in the sense defined by Blackstone, a master whom many Eighteenth Century American lawyers took as final authority.

The court then cited Blackstone:

A denizen is an alien born, but who has obtained ex donations regis letters-patent to make him an English subject: a high and incommunicable branch of the royal prerogative. A denizen is in a kind of middle state, between an alien and natural born subject, and partakes of both of them. He may take lands by purchase or devise, which an alien may not; but cannot take by inheritance.

The Zdunic court went on:

As used in the [AEA] the term [“denizen”] must refer to some relation to the enemy nation which is not lost by the alien's presence within the United States. Merely former residence by him in the enemy country cannot suffice; nor can former domicil. The context seems to forbid extending the meaning to embrace a connection with the enemy state which does not include some form of allegiance. No use of the term has been shown except the English use ... . so worded as to include all those ways known to our forefathers by which one could become what we now call the national of another state. We are not disposed to attempt a definition of “denizens” which goes beyond that of Blackstone.

Also in 1943, the 2nd Circuit ruled in United States ex rel. Schwarzkopf v. Uhl that:

The issue for decision is whether the relator is a “citizen” of Germany within the meaning of the [AEA]... . In determining who are “citizens” of a foreign nation our courts must consider not only the municipal law of the foreign nation but also the accepted rules and practices under international law. If the relator's citizenship be tested by the municipal law of Germany ... the claim ... must be based upon the conquest and annexation of Austria ... . But under ... the American view ... only the “inhabitants” who “remain” ... are to be deemed nationals of the annexing state ... . by their own consent, express or implicit ... . [But i]f they have voluntarily departed before the annexation and have never elected to accept the sovereignty of the new government, their allegiance is not so transferred ... .

The [government] concedes th[is] principle ... but denies its applicability because there is no Austrian government in exile ... . [C]ivilized nations should not recognize th[is] asserted distinction. If the invaded country has ceased to exist as an independent state there would seem to be all the more reason for allowing its former nationals, who have fled from the invader ... [the right to disclaim citizenship]. In our view an invader cannot under international law impose its nationality upon non-residents of the subjugated country without their consent, express or tacit.

Then, in United States ex rel. D’Esquiva v. Uhl, the 2nd Circuit ruled that same year that:

The government argues that [the appellant] is at least a “native” of Germany within the meaning of that word as used in the [AEA]. The use by congress of the four words “natives, citizens, denizens, or subjects” indicates that each word is to have a significant and different meaning. They include all who by reason of ties of nativity or allegiance are likely to favor the enemy nation. “Natives” must include others besides citizens or subjects of the hostile nation or government. In its ordinary and natural meaning the word refers to a person's place of birth. Hence a person remains a native of the country of his birth, although he has moved away and become a citizen or subject of another nation or government ... . This is inferable from the [AEA] itself ... . The exception of those who have been naturalized is necessary only because of the term “natives”; the other classes named would cease to be “citizens, denizens, or subjects” of a hostile nation by the very fact of naturalization ... .

The next step is to determine the application of the statute to a native of Austria after that country ceased to exist as an independent nation. Against [the government’s] claim that he is a native of what is now recognized as Germany, appellant argues that a native is a person born not only within the territory, but also “within the allegiance of the government,” in question ... . [U]nless we would deprive the word of all meaning in the statute, the additional requisite for a native for which appellant contends cannot be supported. And we think that, unless bizarre results are to be accepted, the term “native of a hostile nation” must include one born of native-citizen parents at a place which has now been recognized by our government as a component part of a nation with which we are at war. Thus, a native of Prussia before the German Empire was proclaimed in 1871 would now be a native of Germany ... . Nor should changes in the composition of the nation — the adding or subtracting of parts ... make a discontinuity so that a native of the former nation is to be considered not now a native of the succeeding and present nation.

Hence, if Austria is now recognized as a component part of Germany, we think appellant is to be considered a German native ... . Recognition of foreign nations ... is a political question, the determination of which by the legislative and executive departments of the government conclusively binds the courts.

The dissenting judge argued that:

[O]ne who was born a native of Austria remains a native Austrian even though his country loses its identity as an independent state; hence, if the conqueror (Germany) becomes a “hostile nation or government” I do not think the native-born Austrians thereby become “natives” of a hostile nation within the meaning of the [AEA]. The purpose of that statute was to safeguard the security of the United States by apprehending and detaining all aliens who would be likely to entertain friendly feelings for the hostile nation, if in the individual case the President thought detention necessary. Native-born members of the hostile nation were likely to entertain such feelings and were therefore included in the definition of enemy aliens unless they had become naturalized citizens of the United States. But a native of the conquered country who has removed himself before the conquest has no reason whatever to favor the conqueror; on the contrary he has every reason for antipathy. In my view he cannot be considered a “native” of the hostile nation within the meaning of the [AEA].

What Constitutes an Invasion?

The AEA may be triggered “[w]henever ... any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States”. What is the meaning of “invasion”?

While not defined in the statute, presumably the term has the same meaning as it does in the Constitution. Article IV, § 4 provides in part that “[t]he United States ... shall protect each of [the States] against Invasion” (the “Invasion Clause”) and article I, § 10 provides in part that “[n]o State shall, without the Consent of Congress ... engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay” (the “State Self-Defense Clause”).

Then Arizona Attorney General Mark Brnovich explained in a 2022 opinion that: “In the 1990s, states and counties, including Arizona, sued the federal government under the Invasion Clause, argu[ing] that out-of-control levels of illegal immigration constituted an “invasion” ... that triggered the federal government’s duty to protect the states.”

Brnovich then acknowledged that “[federal c]ourts rejected these claims, holding that addressing them would require making ‘non-judicial policy decision[s].’” But he argued that “because the courts held that the question itself is non-justiciable, their statements about what constitutes an invasion are dicta”. He also contended that these decisions “never reached the issue of organized cartel activities or the State Self-Defense Clause”. He elaborated:

• [T]he U.S. Constitution established a dual protection against invasion through both the Invasion Clause and the State Self-Defense Clause. There are no grounds to conclude that this protection applies only to hostilities by foreign states and not to those by non-state actors such as cartels and gangs…. [The court] decisions … focused on “invasion” by unauthorized aliens themselves. They thus provide no analysis of the meaning of the word “invasion” in the context of non-state hostile actors, such as organized cartels and gangs. They also failed to address more broadly the meaning of “invasion” in the context of security concerns at a State’s border.

• [C]artel and gang violence … falls within the[] broad definition[] of “invade[” contained in early 19th century dictionaries] since cartel and gang members are entering Arizona in a hostile manner that attacks, encroaches on, and violates Arizona.

• It would be nonsensical to conclude that either [constitutional] power is artificially limited to invasion by foreign states as opposed to hostile non-state actors, as it would render the State defenseless in the absence of federal support.

Texas Gov. Greg Abbott similarly contends that the state is being invaded “by the Mexican drug cartels” in the context of his allegation that the Biden administration is not protecting Texas from invasion as is its duty under the Invasion Clause, forcing Texas to protect itself from invasion pursuant to the State Self-Defense Clause:

The U.S. Constitution won ratification by promising the States, in Article IV, § 4, that the federal government “shall protect each of them against Invasion.” By refusing to enforce the immigration laws enacted by Congress, including 8 U.S.C. § 1325(a)(1)’s criminal prohibition against aliens entering the United States between authorized ports of entry, your Administration has made clear that it will not honor that guarantee. The federal government’s failure has forced me to invoke Article I, § 10, Clause 3 of the U.S. Constitution, thereby enabling the State of Texas to protect its own territory against invasion by the Mexican drug cartels. [Emphasis added.]

What did the courts actually conclude? In the 9th Circuit’s 1997 decision in California v. United States, “California [had] assert[ed] various constitutional and statutory claims premised on the impact of federal immigration policy on the State, particularly as it affects the State's fiscal burdens ... . [and sought] monetary damages as well as injunctive and declaratory relief under the [APA]”. As to the Invasion Clause, the court ruled that:

California contends that the United States has violated its obligation under the Invasion Clause ... to protect the State from invasion. [This] claim ... presents a nonjusticiable political question. In Baker v. Carr [in 1962], the Supreme Court set forth the analysis that governs the political question doctrine. There, the Court stated:

It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

In this case, the issue of protection of the States from invasion implicates foreign policy concerns which have been constitutionally committed to the political branches. The Supreme Court has held that the political branches have plenary powers over immigration. ... For this Court to determine that the United States has been “invaded” when the political branches have made no such determination would disregard the constitutional duties that are the specific responsibility of other branches of government, and would result in the Court making an ineffective non-judicial policy decision ... . [E]ven if the issue were properly within the Court's constitutional responsibility, there are no manageable standards to ascertain whether or when an influx of illegal immigrants should be said to constitute an invasion. The Court notes that the other Circuits that have addressed the issues before us in similar suits against the United States have reached the same conclusions that we do.

...

Moreover, California ignores the conclusion set forth by our Founders. In The Federalist No. 43, James Madison referred to the Invasion Clause as affording protection in situations wherein a state is exposed to armed hostility from another political entity. Madison stated that [it] serves to protect a state from “foreign hostility” and “ambitious or vindictive enterprises” on the part of other states or foreign nations.

In the 2nd Circuit’s 1996 decision in Padavan v. United States, New York State had sought “financial support from the federal government to compensate [it] and its subdivisions for costs associated with the education, confinement, health, and welfare of legal and illegal aliens”. As to the Invasion Clause, the court ruled that:

[T]he plaintiffs contend that the federal government violated the Invasion Clause because the influx of legal and illegal aliens into New York State represents an “invasion[]” [from which] the federal government has failed to protect [it].

...

Assuming, arguendo, that the plaintiffs’ Invasion Clause claim is justiciable, the claim still must be dismissed for failure to state a claim upon which relief can be granted. In order for a state to be afforded the protections of the Invasion Clause, it must be exposed to armed hostility from another political entity, such as another state or foreign country that is intending to overthrow the state's government. [citing Madison in Federalist 43].” Clearly, New York State is not being subjected to the sort of hostility contemplated by the Framers.

In any event, the plaintiffs’ Invasion Clause claim is nonjusticiable. The protection of the states from “invasion” involves matters of foreign policy and defense, which are issues that the courts have been reluctant to consider.

In his preliminary injunction ordering Texas to remove floating barriers the State placed in the Rio Grande River to deter illegal entries, Federal District Court Judge David Ezra cited these cases (“courts of appeal have uniformly declined to consider whether and when an ‘invasion’ occurs because of illegal immigration”) in concluding that “the political question doctrine bars consideration of Texas’s ‘invasion’ defense”.

What did Madison actually say? He wrote in Federalist 43 that:

The latitude of the expression here used seems to secure each State, not only against foreign hostility, but against ambitious or vindictive enterprises of its more powerful neighbors. The history, both of ancient and modern confederacies, proves that the weaker members of the union ought not to be insensible to the policy of this article.

It would seem that by “ambitious or vindictive enterprises”, Madison was actually referring to mischief carried out by one State (in the sense of Virginia rather than Venezuela) against another State.

In the Journal Notes of the Virginia Ratification Convention Proceedings (June 16, 1788), Madison wrote that:

[T]he only possible way to provide against standing armies, is, to make them unnecessary ... [by] organiz[ing] and disciplin[ing] our militia, so as to render them capable of defending the country against external invasions, and internal insurrections ... . The militia ought to be called forth to suppress smugglers. Will this be denied? The case actually happened at Alexandria. There were a number of smugglers, who were too formidable for the civil power to overcome. The militia quelled the sailors, who, otherwise, would have perpetrated their intentions. Should a number of smugglers have a number of ships, the militia ought to be called forth to quell them. We do not know but what there may be combinations of smugglers in Virginia hereafter. We all know the use made of the Isle of Man. It was a general depositary of contraband goods. The Parliament found the evil so great, as to render it necessary to wrest it out of the hands of its possessor.

Brnovich leaped at this language:

• Madison ... made clear at the Virginia Ratifying Convention that the protection against “invasion” applies to hostile non-state actors. Madison specifically brought up “suppress[ing] smugglers” as an example of a justified use of the state’s militia, and he cited with approval an actual prior case of Virginia calling out its militia to do just that.

• [T]here can be little doubt that the activities of 21st century drug cartels and gangs are just as violent, militant, and invasive than those of 18th century Virginia smugglers, if not more so. And thus the State Self-Defense Clause reserves to States the sovereign right to use force to defend themselves against the activities of transnational cartels and gangs operating in the State’s territory at its border.

It is not clear (to me) whether the smugglers that Madison was referring to were domestic or foreign, or whether he considered their activities in Virginia to constitute an invasion. In any event, because of the political question doctrine, we may never get a definitive read from the federal courts as to what constitutes an invasion under the Constitution.

Can the AEA Be Used Against the Drug Cartels?

Assuming for the sake of argument that the United States is indeed — for purposes of the Invasion and State Self-Defense Clauses and of the AEA — experiencing an invasion, can the AEA be used to detain and remove “non-state hostile actors, such as organized cartels and gangs” and “known or suspected Gang Members, drug dealers, or Cartel Members”?

First, I should note that it would surely be easier to utilize the Aliens Friends Act to achieve these objectives, for it allowed for the removal of all aliens the President judged to be dangerous to the peace and safety of the United States, or had reasonable grounds to suspect were concerned in any treasonable or secret machinations against our government. But the AFA expired at the dawn of the 19th Century.

The problem with utilizing the AEA for these purposes is that not every invasion (or every declared war or every predatory incursion perpetrated, attempted, or threatened against the territory of the United States) can trigger the AEA’s powers. Only an invasion by a foreign nation or government qualifies. Brnovich can make a strong argument about invasion by hostile non-state actors in the context of the Constitution, but such an argument seemingly does not translate to the context of the AEA.

Neither the AEA nor Title 50 as a whole defines either a “foreign nation” or a “foreign government”. It may be presumed that this was not a congressional oversight, but recognition that everyone knows what nations and governments are. But the term “foreign government” is defined a number of times in the U.S. Code for particular purposes. For instance, within Title 18 [“Crimes and Criminal Procedure”], section 11 provides that “The term “foreign government”, as used in this title except in [certain] sections ... includes any government, faction, or body of insurgents within a country with which the United States is at peace, irrespective of recognition by the United States.” (Emphasis added.) And section 798(a) provides that:

• Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States [certain] classified information ... [s]hall be fined under this title or imprisoned not more than ten years, or both.

• The term “foreign government” includes in its meaning any person or persons acting or purporting to act for or on behalf of any faction, party, department, agency, bureau, or military force of or within a foreign country, or for or on behalf of any government or any person or persons purporting to act as a government within a foreign country, whether or not such government is recognized by the United States.

So, at least for some purposes, the U.S. Code contemplates that certain governmental factions or bodies of insurgents within a country can be considered foreign governments.

While Title 50 does not contain a definition of “foreign government”, it does contain a definition of “foreign power” for purposes of allowing the president to authorize electronic surveillance to secure foreign intelligence information without a court order:

(1) a foreign government or any component thereof, whether or not recognized by the United States; (2) a faction of a foreign nation or nations, not substantially composed of United States persons; (3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments; (4) a group engaged in international terrorism or activities in preparation therefor; (5) a foreign-based political organization, not substantially composed of United States persons; (6) an entity that is directed and controlled by a foreign government or governments; or (7) an entity not substantially composed of United States persons that is engaged in the international proliferation of weapons of mass destruction.

This language originated with the “Foreign Intelligence Surveillance Act of 1978”. The Senate Judiciary Committee Report¹¹ stated that the “foreign government” category “would include foreign embassies and consulates and similar ‘official’ foreign governmental establishments which are located in the United States.” As to the “faction” category:

[It] is intended to include factions of a foreign nation or nations which are in a contest for power over, or control of the territory of, a foreign nation or nations. The faction must be foreign-based and controlled from abroad. Specifically excluded from this category is any faction of a foreign government or government[s] which is substantially composed of permanent resident aliens or citizens of the United States.

The “openly acknowledged ... to be directed and controlled” category includes entities “which are clearly arms of a government or governments and not privately controlled”. The Senate Select Committee on Intelligence’s Report¹² added that “This category would permit surveillance, for example, of a legitimate commercial establishment which is directed and controlled by a foreign government and which, because of the nature of its operations, constitutes a source of foreign intelligence information otherwise unavailable to the U.S. Government.”

The “directed and controlled” category “would include an entity which appears to be a legitimate commercial establishment but which is actually being utilized by a foreign government as a cover for espionage activities.” The Senate Select Committee on Intelligence’s Report added that “Such an entity must be acting as [an] arm of the government with respect to the activities that are of foreign intelligence or counterintelligence significance.”

Thus, in the context of foreign intelligence gathering, a faction may be considered a “foreign power” but it does not fall within the definition of a foreign government, likewise with an entity that is directed or controlled by a foreign government. So, at least for some purposes, the U.S. Code contemplates that factions and entities directed or controlled by foreign governments are not to be considered foreign governments.

Thus, it seems clear that the AEA does not apply to invasions by non-state hostile actors, with the possible exception of factions or insurgents fighting for control of a government, but certainly not to gangs, cartels, and criminals. Or, does it?

There is not always a sharp distinction between a hostile nation or government and a non-state hostile actor. Consider the Barbary States. Sidak has written that:

• Thomas Jefferson could have invoked the [AEA] in 1801, when he informed Congress for the first time in his annual message that United States ships had been waging war in the Mediterranean against the Barbary Pirates, whose leader, the Bey of Tripoli, in Jefferson's words “had already declared war” on the United States.

• I am assuming that the Bey of Tripoli was a legitimate representative of a “foreign nation or government” for purposes of the [AEA] and not just some Mediterranean gangster. That Jefferson did not invoke the Act is no surprise; presumably few, if any, Barbary Pirates resided in the United States in 1801.

What did President Jefferson say in his first annual message to Congress? He stated that:

Tripoli, the least considerable of the Barbary States, had come forward with demands unfounded either in right or in compact, and had permitted itself to denounce war on our failure to comply before a given day. The style of the demand admitted but one answer.

I sent a small squadron of frigates into the Mediterranean, with assurances to that power of our sincere desire to remain in peace, but with orders to protect our commerce against the threatened attack. The measure was seasonable and salutary. The Bey had already declared war. His cruisers were out. Two had arrived at Gibraltar. Our commerce in the Mediterranean was blockaded and that of the Atlantic in peril.

What were the Barbary States — nations or pirates or both? The State Department’s Office of the Historian has explained that:

The Barbary States were a collection of North African states, many of which practiced state-supported piracy in order to exact tribute from weaker Atlantic powers. Morocco was an independent kingdom, Algiers, Tunis, and Tripoli owed a loose allegiance to the Ottoman Empire. The United States fought two separate wars with Tripoli (1801–1805) and Algiers (1815–1816), although at other times it preferred to pay tribute to obtain the release of captives held in the Barbary States.

The practice of state-supported piracy and ransoming of captives was not wholly unusual for its time. Many European states commissioned privateers to attack each others’ shipping ... . Great Britain and France[] found it expedient to encourage the Barbary States’ policy and pay tribute to them, as it allowed their merchant shipping an increased share of the Mediterranean trade, and Barbary leaders chose not to challenge the superior British or French navies.

So, the Barbary States were nations, nations that practiced state-supported piracy. Not quite non-state actors. Even if they were, contrary to Sidak they could not be said to have launched an invasion or predatory incursion “against the territory of the United States”, assuming their predations occurred on the high seas.

What of the present day? A decade ago, Moisés Naím wrote in his influential article “Mafia States” that “Mafia states defy easy categorization, blurring the conceptual line between states and nonstate actors.” He explained that:

• In recent years, a new threat has emerged: the mafia state. Across the globe, criminals have penetrated governments to an unprecedented degree. The reverse has also happened: rather than stamping out powerful gangs, some governments have instead taken over their illegal operations. In mafia states, government officials enrich themselves and their families and friends while exploiting the money, muscle, political influence, and global connections of criminal syndicates to cement and expand their own power. Indeed, top positions in some of the world's most profitable illicit enterprises are no longer filled only by professional criminals; they now include senior government officials, legislators, spy chiefs, heads of police departments, military officers, and, in some extreme cases, even heads of state or their family members.

  ...

  In a mafia state, high government officials actually become integral players in, if not the leaders of, criminal enterprises, and the defense and promotion of those enterprises' businesses become official priorities.

• [I]llicit groups have never before managed to acquire the degree of political influence now enjoyed by criminals in a wide range of African, eastern European, and Latin American countries, not to mention China and Russia.

  ...

  José Grinda, a Spanish prosecutor with years of experience fighting eastern European criminal organizations, maintains that in many cases, it has become impossible for him and his colleagues to distinguish the interests of criminal organizations from those of their host governments. According to Grinda, Spanish law enforcement officials constantly confront criminal syndicates that function as appendages of the governments.

• [A] succession of generals who held the chief antidrug post in Mexico are now in prison for taking part in the very kind of crime they were supposed to prevent.

Texas Gov. Abbott might be utilizing the concept of a “mafia state” when he argues that Texas can declare and respond to “all types of invasions, including invasions from non-state or quasi-state actors”. (Emphasis added.)

Thus, an argument could be made that criminal cartels and other organized criminal enterprises that have become entwined with “mafia states” could be considered parts of the governments of such states. Of relevance, earlier this year the Mexico Daily Post reported that Sen. Lindsey Graham asked Secretary of State Antony Blinken during a hearing whether drug cartels control parts of Mexico. Secretary Blinken replied “I think it’s fair to say yes.”

Consequently, any invasions or predatory incursions they perpetrate, attempt, or threaten could be considered actions of a foreign government triggering the AEA. Whether federal courts would be persuaded by such arguments is an open question (unless, of course, Congress were to clarify the terms used in the AEA). But assuming the contentions have legs, the AEA would authorize the detention and removal of natives, citizens, denizens, or subjects of the relevant mafia government, including relevant gang and cartel members. But what of gang and cartel members who are not natives, citizens, denizens, or subjects of such government, but rather of another nation? Seemingly, the AEA would not authorize their detention or removal.

The AEA and the People’s Republic of China

There is a more traditional use for which the AEA is well-suited. As I have written in the Washington Examiner:

[T]he number of [People’s Republic of China] PRC nationals going to college on student visas ... . [was] 290,086 in 2021/22 ... representing almost one-third of all foreign students.

PRC military officials openly proclaim that armed conflict with the United States is inevitable and the PRC has been assiduously pursuing a goal of military superiority.

...

How are we preparing for this threat? ... [W]e are engaging in a campaign of turbocharging the PRC’s war preparations ... [t]hrough a student visa policy that lets the PRC strip-mine U.S. universities for militarily exploitable technological know-how. The U.S.-China Economic and Security Review Commission concludes that “overseas Chinese students and scholars are key to [the PRC’s] plans to transform China into a ... militarily formidable world power,” and FBI Director Christopher Wray concludes that the PRC “has pioneered a societal approach to stealing innovation any way it can [including] through graduate students and researchers”. As a former CIA officer noted, “Anytime a graduate student from China comes to the U.S., they are briefed when they go, and briefed when they come back.” Students don’t necessarily come here with ill intent, but, as the State Department has testified, they “are later co-opted to work for their government.”

I then raised an “unpleasant question — what happens if the PRC and the U.S. go to war?” As I have discussed previously, what would be an administration’s options in removing already admitted students from the PRC under the specter of war? Should they leave the U.S., a § 212(f) proclamation by the president could certainly bar their return. However, it would be extremely difficult to remove those who choose to stay, both because of the statutory and constitutional rights their presence in the U.S. affords them and because of the operational and resource obstacles involved in bringing thousands of deportation cases in vastly backlogged immigration courts. Should the Department of Homeland Security (DHS) attempt to deport a large number of students from the PRC pursuant to the foreign policy ground of deportability, there is a great risk that federal courts would declare the ground unconstitutional. I have concluded that “As long as they are here under a ‘duration of status’ regime and decline to leave the U.S., many will remain here far into the future.”

I had failed to consider an administration’s ability to detain and remove PRC nationals through the AEA should armed conflict arise with the PRC. Barring federal courts newly finding the AEA unconstitutional, inventing new judicial review requirements, or imagining new ways to bring the APA to bear, it seems that the AEA would be the one feasible mechanism to protect the nation from PRC nationals present in the United States during such a conflict.

The AEA’s Potential Vulnerability

There is one legal threat to the viability of the AEA that most concerns me. As I have discussed, in 2022 the D.C. Circuit Court of Appeals issued a decision in Huisha-Huisha v. Mayorkas in which it refused to fully uphold a district court’s preliminary injunction against Title 42 expulsions. However, it was a pyrrhic victory for Title 42 because the appeals court ruled that while Title 42’s section 265 “probably” allows the government to expel aliens, the court included the caveat that DHS can’t expel aliens to a country where they would be threatened with persecution or torture.

The D.C. Circuit argued that:

• Two statutes — § 265 and § [237](a)(1)(B) [of the INA] — appear to provide the Executive with ample authority to expel ... aliens [in order to prevent the introduction of COVID into the United States] ... . The § 265 Order also means covered aliens who enter at this time are here illegally. ... [§ 237](a)(1)(B) says, “Any alien who is present in the United States in violation of ... any ... law of the United States ... is deportable.” ... That means, barring any exceptions Congress creates elsewhere, the Executive can expel aliens who are here illegally.

• But § 265 does not tell the Executive where to expel aliens ... . Title 8 lists several possible destinations [and] adds that the Executive cannot remove aliens to a country where their “life or freedom would be threatened” on account of their “race, religion, nationality, membership in a particular social group, or political opinion [commonly referred to as “withholding of removal”].”... And it prohibits the Executive from expelling aliens to a country where they will likely be tortured [commonly referred to as CAT relief]. [Emphasis in original.]

• The Plaintiffs argue that the ... Order violates those two limits on where the executive can expel aliens. On that question, the Plaintiffs have shown they are likely to succeed on the merits.

• [W]ithholding-of-removal relief ... is mandatory ... . In other words, unlike [asylum, it] gives the Executive no discretion ... .

  [T]o expel aliens to places prohibited ... the Executive must identify a statute that creates an exception ... . It says § 265 is that statute. But we see no conflict between [the two].

  [Section 265] says nothing about where the Executive may expel aliens.

• [W]e can give effect to both statutes. And because we can, we must ... . That leaves the Executive with the power to expel [aliens] to ... any place where the[y] will not be persecuted [or tortured].

Why do I consider the decision a pyrrhic victory for Title 42 expulsions? Because if aliens can’t be removed to countries where they are supposedly “threatened with persecution or torture”, activist federal courts are likely to conclude that the only way to ensure that such proscribed removals don’t happen is to require that DHS use the very same debased expedited removal/credible fear procedures that are one primary cause (along with the Biden administration) of our southern border crisis.

The D.C. Circuit demonstrated absolutely no understanding of the realities of border enforcement when it stated that “through an expedited removal process enacted by Congress in 1996, the Executive can quickly expel aliens with non-credible claims for relief.” However, even President Biden’s hand-picked DHS Secretary Alejandro Mayorkas and Attorney General Merrick Garland were forced to conclude in May that:

• Absent policy changes ... most non-Mexicans processed for expedited removal ... would likely establish credible fear and remain in the United States for the foreseeable future despite the fact that many of them will not ultimately be granted asylum, a scenario that would likely incentivize an increasing number of migrants to the United States and further increase the likelihood of sustained high encounter rates.

• [T]hose who have a valid claim to asylum may have to wait years for their claims to be granted, while individuals who will ultimately be found ineligible for protection may spend years in the United States before being ordered removed.

• [O]nce processed [apprehended aliens] will be released into local communities that are already at or near their capacity to absorb them.

Mayorkas and Garland had also come to the realization in February that:

• [M]any individuals who avail themselves of the credible fear process do not have meritorious claims [for asylum].

• [M]ost migrants who are initially deemed eligible to pursue their claims ultimately are not granted asylum in the subsequent ... removal proceedings.

• [N]oncitizens ultimately found ineligible for asylum or another form of protection are likely to spend many years in the United States prior to being ordered removed.

• [T]he fact that migrants can wait in the United States for years before being issued a final order denying relief, and that many such individuals are never actually removed, likely incentivizes migrants to make the journey north.

Additionally, the D.C. Circuit was simply wrong as a matter of law. The “removal” in withholding of removal only refers to removals under § 240 of the INA, which describes removal proceedings in immigration court — § 240(a)(3) providing that:

Unless otherwise specified in this chapter, a proceeding under this section shall be the sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States. [Emphasis added.]

Nothing in “the chapter” refers to Title 42 (or Title 50, for that matter). Thus, when the withholding of removal statute provides that the government cannot “remove an alien to a country”, it is not referring to Title 42 expulsions (or Title 50 removals). Title 42 (and Title 50) expulsions (removals) are not subject to the withholding of removal stricture. It is simply not the case, as the D.C. Circuit believed it to be, that “§ [241] limits where the Executive can expel aliens who violate the § 265 Order.”

The government in essence made this argument in litigation over the Migrant Protection Protocols (MPP). In the 9th Circuit’s case of Innovation Law Lab v. Wolf:

The Government ... argues ... that § [241(b)(3)(A) of the INA, the withholding of removal statute] does not encompass a general antirefoulement obligation. It argues that the protection provided ... applies to aliens only after they have been ordered removed to their home country at the conclusion of a regular § 240 removal proceeding [in immigration court]. ... It writes ... [that a]liens subject to MPP do not receive a final order of removal to their home country when they are returned (temporarily) to Mexico, and so there is no reason why the same procedures would apply.

Now, it is true that the 9th Circuit rejected the government’s argument:

The Government reads [the statute] too narrowly. ... [I]ts application is not limited to such [removal] proceedings. ... [A]s recognized by the Supreme Court, Congress intended [withholding of removal] to “parallel” Article 33 of the 1951 [Refugee] Convention. ... Article 33 is a general anti-refoulement provision, applicable whenever an alien might be returned to a country where his or her life or freedom might be threatened on account of a protected ground. ... not limited to instances in which an alien has had a full removal hearing.

But the 9th Circuit is wrong. It needs to accept the (plain) language of § 240(a)(3).

In any event, Huisha-Huisha ended with a whimper rather than a bang. The district court on remand simply vacated the entire Title 42 expulsion system! The judge based his decision in part on his conclusion that the Centers for Disease Control and Prevention’s (CDC) “decision to ignore the harm [to aliens] that could be caused by issuing its Title 42 orders was arbitrary and capricious”, further stating that:

[N]umerous public comments during the Title 42 policy rulemaking informed CDC that implementation of its orders would likely expel migrants to locations with a “high probability” of “persecution, torture, violent assaults, or rape.”... It is undisputed that the impact on migrants was indeed dire [citing the D.C. Circuit’s conclusion that “Plaintiffs would suffer irreparable harm if expelled to places where they would be persecuted or tortured”].

However, earlier this year, the Supreme Court essentially declared the case moot as a result of the end of the COVID public health emergency.¹³

How could the D.C. Circuit’s decision undermine the AEA? First, let me note that most enemy aliens would likely not be amenable to expedited removal. The INA’s expedited removal provision can only be used against certain inadmissible aliens “arriving in the United States” and, at DHS’s discretion, to “any or all” aliens “who ha[ve] not been admitted or paroled ... and who ha[ve] not affirmatively shown ... that the[y] ha[ve] been physically present in the United States continuously for the 2 year period immediately prior to the date of the determination of [their] inadmissibility”. DHS has only relied on this statutory authority to extend the use of the program to aliens apprehended within 100 miles of the U.S. border within 14 days of entering the country. So, currently, enemy aliens who have been physically present in the U.S. for any appreciable amount of time would not qualify for expedited removal.

Second, in most cases (excepting, for instance, the Alien Terrorist Removal Court), aliens not removed pursuant to expedited removal who the government wants to remove will be placed into § 240 removal proceedings in immigration courts at DOJ’s Executive Office for Immigration Review. The Transactional Records Access Clearinghouse at Syracuse University (TRAC) reports that at the end of July, the immigration courts had over 2.5 million pending cases (up from about 350,000 10 years earlier). As a consequence, NBC News reported in June that “The average wait time for a case before an immigration court is 1,572 days — that is, 4.3 years — from the time the process reaches the court and until it receives a hearing, TRAC detailed.”

Third, should federal courts apply the D.C. Circuit’s rationale in Huisha-Huisha to AEA removals and require that enemy aliens first be placed in removal proceedings in immigration court (in order that they may seek asylum and withholding of removal), enemy aliens will have to wait years until they get even initial hearings (and, in the interim, most will likely simply be released back onto the streets). Most wars would likely be long over by then! Obviously, such a result would cripple the “combat effectiveness” of the AEA. We can only hope that the Supreme Court at some point will intervene and restore sanity to the system.

End Notes

¹ Citizens Protective League v. Clark, 155 F.2d 290, 295 (D.C. Cir. 1946).

² Anti-Immigration in the United States, Vol. 2 541 (K. Arnold, ed.).

³ What is a “predatory incursion”? It is roughly equivalent to a raid. Walker and Webster Combined in a Dictionary of the English Language (1864) defined a raid as a “predatory incursion” and Webster’s New Illustrated Dictionary of the English Language (1911) defined a raid as “a hostile or predatory incursion”. Additionally, Etymonline, an “online etymology dictionary”, discusses the origin of the noun “foray”:

[L]ate 14c., “predatory incursion,” Scottish, from the verb (14c.), perhaps a back-formation of Middle English forreyer “raider, forager” (mid-14c.), from Old French forrier, from forrer “to forage,” from forage “fodder; foraging; pillaging, looting” (see forage (n.)). Disused by 18c.; revived by Scott. As a verb from 14c.

⁴ In 1918, Congress removed the Act’s limitation to males. See Pub. L. No. 65-131.

⁵ 15 F. Cas. 758 (1817).

⁶ The Library of Congress explains that “The Annals of Congress ... were not published contemporaneously, but were compiled between 1834 and 1856, using the best records available, primarily newspaper accounts. Speeches are paraphrased rather than presented verbatim, but the record of debate is nonetheless fuller than that available from the House and Senate Journals.”

⁷ 155 F.2d 290 (D.C. Cir. 1946).

⁸ 257 F. 110 (S.D. N.Y. 1919).

⁹ Minotto v. Bradley, 252 F. 600, 604 (N.D. Ill. 1918). See also Ex parte Fronklin. 253 F. 984 (N.D. Miss. 1918) and Ex parte Graber, 247 F. 882 (N.D. Ala. 1918).

¹⁰ 158 F.2d 853 (2nd Cir. 1946).

¹¹ S. Rep. No. 95-604 (1977).

¹² S. Rep. No. 95-701 (1978).

¹³ Following the district court’s decision, the D.C. Circuit denied the request of a number of states to intervene to protect their interests. The states sought a writ of certiorari, which the Supreme Court granted. But after “the Secretary of Health and Human Services ... issued his own directive announcing the end of the public-health emergency underlying the Title 42 orders”, the Supreme Court remanded the case with instructions to dismiss the states’ motion as moot. Justice Gorsuch quipped that the end of the Covid emergency had “[a]pparently ... persuade the Court that the Title 42 orders the [Biden administration] wished to withdraw a year ago are now as good as gone and any dispute over them is moot.”