Setting the record straight on the 1798 statute former President Trump claims he'll use to summarily arrest and deport undocumented immigrants—and the Supreme Court's handful of interactions with it
Your column is very interesting, as usual, but I think you got the definitions of issei and nisei backwards. Issei are first-generation Japanese nationals who came to the U.S., while nisei are the second generation who were born as U.S. citizens.
I am way more pessimistic about the courts’ deference to (Republican) presidential authority. Having deferred once to a president’s power to define when a war ended, why wouldn’t SCOTUS, particularly this SCOTUS, defer on the incursion/invasion language? The real question to me is whether invoking this particular act gives a president broader enforcement latitude than the existing laws/regulations, how it interacts with other statutes on the books, what it means for documented immigrants who are not yet nationalized and what it portends for US citizens assisting them (do they become liable for treason?).
The conduct of the SCOTUS justices in Ludecke (allowing detention of people despite the absence of any nexus with either necessity or defense) reminds me of the willful blindness inherent in the tyranny of today's majority (of SCOTUS) with respect to self-defense and self-preservation. The text and purpose of the Second Amendment (and precedent thereunder) are relevant to both situations.
The Second Amendment emphasized conduct that was "necessary to the security of a free State." But I agree with SCOTUS in Heller and Bruen that the Second Amendment is about something far different from what the text of the amendment reveals (except for the words "right of the people" to do what is "necessary" for their "security"). It obviously is not limited to any "right" to merely "keep" or merely "bear" any kind of "arms" or about mere "arms," in general. It obviously is about something both far more capacious and far more constrained than "arms."
The same six justices responsible for Dobbs were responsible for N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). SCOTUS published Bruen one day before Dobbs. In Bruen, the Dobbs justices invoked District of Columbia v. Heller, 554 U.S. 570 (2008):
In [Heller] the Court [acknowledged] that the Second Amendment [really] protects the right to [ ] self-defense. [Clearly, the Second] Amendment codified a preexisting right and that this right was regarded at the time of the Amendment’s adoption as rooted in “‘the natural right of [ ] self-preservation.’” [ ] “[T]he inherent right of self-defense,” Heller explained, is “central to the Second Amendment right.”
Heller, in fact, was far more emphatic and well-supported. “By the time of the founding, the right” of self-preservation was “fundamental for English subjects.” “Blackstone” (whose works, SCOTUS has said, “constituted the preeminent authority on English law for the founding generation”) in 1765 cited the relevant “provision of the [English] Bill of Rights [of 1689] as one of the fundamental rights of Englishmen.” Blackstone’s “description” emphasized “the natural right” of “self-preservation” and “the right” of “self-preservation and defence.” Moreover, “the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear” in 1803 that “Americans understood” the “right of self-preservation.”
In their own “review of founding-era sources,” the Heller majority found “nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens” to use deadly force against other actual people “in defense of themselves” or “in defense of himself.”
“Justice James Wilson” similarly “interpreted the Pennsylvania Constitution’s” relevant “right” as “a recognition of the natural right of defense” of “one’s person or house” which “he called the law of “self preservation.” Wilson explained this “constitutional right” was “one of our many renewals of the Saxon regulations.”
Anyone sincerely and seriously supporting our Constitution would compare Dobbs with Bruen, Heller and the Preamble (the Constitution’s first, most fundamental and most important text) and recognize the right of women to self-defense and self-preservation. Heller and Bruen necessarily did recognize the right of women to self-defense and self-preservation, even if they needed to terminate the life or lives of one or more actual persons.
Heller and Bruen (and the authorities they invoked) and the Preamble (especially when viewed in light of the First, Second, Fourth, Ninth, Tenth, Fourteenth, Fifteenth and Nineteenth Amendments) extremely strongly and extremely clearly confirmed a woman’s constitutional right to defend or protect herself, even if she must terminate her own pregnancy to do so. They extremely strongly and extremely clearly confirmed that the people did not (in any federal or state constitution) delegate to public servants any power to deprive of us such liberty.
Isn't the "invasion or predatory incursion” bit going to run into difficulties with what we hear is the MOST common category of undocumented immigrant: the ones who entered legally, usually with visas, and just stayed. If the US treats tourists as "invaders" or "predatory" there is an industry about to get slammed into extinction.
Im probably not fully understanding this, but can anyone help clarify this distinction for me?
“the statute the Supreme Court upheld in Korematsu merely made it a crime to violate an exclusion order; it didn’t affirmatively authorize the exclusion.”
Interesting, I definitely need to read Ex Parte Endo but I’m pretty confused why the same Court that says the exclusion orders are constitutional and can’t be violated (in Korematsu) would say the very opposite (in Endo) just because the plaintiffs complied with the order in 1 case but not the other
Fred Korematsu was arrested because he did not report as purportedly ordered. Years later on 11/10/83 with extended family members present in court, Korematsu vs U.S. was overturned, by Presiding Judge Marilyn Patel in the Northern District of California on a Writ.
Oh interesting, can a lower court overturn a Supreme Court case like that? I thought there was some (very disingenuous) language in Trump v Hawaii where the Court officially overturned Korematsu
Maybe somebody should help Trump with some simple math. That statute is from 1798. Our Constitution was written in 1787 and ratified in 1789. In 1798 the statute targeted "predatory incursion" or "invasion." In 1798, our Constitution expressly protected "Migration" of "Persons." It expressly emphasized that such "Migration" of "such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight." Clearly, "predatory incursion" or "invasion" did not encompass "Migration." During that period, massive numbers of people who were not citizens already were in many states and many more being allowed (or brought) into many states. And (in 1798) the Constitution prohibited the federal government from doing anything to stop or even stem such "Migration" for another 10 years in a manner contrary to what "any of the States" might "think proper." Multiple states that benefitted from that clause of the Constitution in 1798 were on the opposite side of the federal government in 1798, including Virginia (dominated by the virulently anti-Federalist, pro-French Republicans led by Jefferson).
Even Professor Steven Vladeck admits that "the Alien Enemy Act ... had nothing to do with the Japanese American internment camps". He notes that malevolent people are making "FALSE" "claims that the same statute had formed the basis for the Japanese American internment camps during the Second World War"
While Professor Vladeck has expert knowledge of the contents of AEA caselaw, he has no expert knowledge about the application of the AEA statute in the circumstance of "predatory incursion" because none of the caselaw he cites involved that circumstance. Professor Vladeck does not even use the phrase "predatory incursion" in his AEA article at:
In his recent internet blog, Professor Vladeck explicitly admits that "there is no case law about the 'invasion or predatory incursion' language" of the AEA statute.
The AEA statute was enacted three years prior to the commencement of the First Barbary War (1801) waged by President Jefferson. This context establishes that Congress intended that the statute shall have some immediate application in a pre-war context. The explicit "or ... predatory incursion" (as opposed to 'military incursion' or "invasion") conclusively proves that the AEA is NOT limited in application to aliens "in wartime" nor limited to military-invasion. The statute's reference to "predatory" aliens native to a "hostile" government having an existing "treaty" focuses attention upon the nations with which the United States had hostility and/or treaty by 1798: Barbary (North Africa) States: Tripoli, Tunis, Algeria, Morocco (and England / France). The denizens of Tripoli are specifically referenced in the 1789 US Constitution as "pira[tes]" and three years after the enactment of the AEA, the United States declared war and returned war against the "pirates" of Tripoli.
See "Jihad in the days of Jefferson
"18th century Muslim privateers felt it was their duty to [prey upon/ enslave] infidels wherever they were. ... In 1783, Muslim pirates - the sea-faring terrorists of their day - began attacking American merchant vessels in the Mediterranean, and the following year, the Moroccans captured a brig called Betsey and enslaved its crew. Soon afterwards, the ruler of Algiers declared war on the US, a declaration backed up by marauding corsairs. The situation worsened with each coming year..."
It cannot be credibly disputed that that the 1798 AEA authorized the President of the United States (John Adams) to immediately order the deportation/removal of any "predatory" denizens of the hostile nation of Tripoli (even though Congress did not formally authorize/declare War against Tripoli until 3 years later in 1801 at the prompting of President Jefferson) John Adams, the President who procured the 1798 AEA from Congress, was one of the two American diplomats who were told to their faces in 1786 that these Islamic States would never stop preying upon (e.g., enslaving) white people (e.g., Americans); because it is The Will of Allah that Muslims must do Jihad against the White Supremacists (i.e., must enslave the Saqaliba infidels who refuse to submit to Islamic Rule, e.g., refuse to pay the Jizya Tax). And, by 1798 the foreign policy of France had hostilely changed to allow (not prevent) the Islamic State's privateers (aka Barbary Pirates) to prey upon Americans at sea and on land.
Moroccan-American Treaty of Peace and Friendship (1786):
Parties: United States, Morocco.
Description: Established peaceful relations and protected American merchant ships from Moroccan corsairs. This treaty still stands today.
1789:
The need to make enforceable agreements with foreign nations (e.g. The Barbary States) prompted the replacement of the Articles of Confederation. The new US Constitution gave the federal government control of commerce, and the authority to enter into treaties and provided a strong executive (President) to enforce treaties and the law of nations.
Treaty with Algiers (1795):
Parties: United States, Algiers.
Description: Secured the release of American white supremacists held captive and, while requiring tribute payments, aimed to establish peace.
The Naval Act of 1794:
This act, passed by Congress and signed by President Washington, authorized the construction of six frigates, specifically in response to the Barbary threat. This is a clear, concrete action demonstrating the intent to build a naval force capable of protecting American commerce from predations. The act was a direct response to Algerian seizures of American ships. The act provided for six frigates, and "...in the event of a declaration of war on the United States by the Barbary powers, these ships were to 'protect our commerce and chastise their insolence-by sinking, burning or destroying their ships and vessels wherever you shall find them.'"
Treaty with Tripoli (1796):
Parties: United States, Tripoli.
Description: Aimed to protect U.S. shipping from piracy.
Involve ransom for enslaved white supremacists and also, required tribute payments.
Treaty with Tunis (1797):
Parties: United States, Tunis
Description: Like the treaties with Algiers and Tripoli, it was made with another of the Barbary States to create peace and protect U.S. interests, though it involved payment of tribute.
A Future declaration of war against the "pirates" of Tripoli, Tunis, and/or Algiers was foreseen by Congress in 1798, and by President Adams who signed the AEA legislation. And future-President Jefferson had been campaigning for this particular war long before 1798, later describing the actions of the Barbary marine gangs as "predatory warfare". "The motives pleading for war rather than tribute are numerous and honorable, those opposing them mean and short-sighted.". [Jefferson: Report as Minister to France, 1786]
"Tribute or war is the usual alternative of these pirates. If we yield the former, it will require sums which our people will feel. Why not begin a navy then and decide on war?"
The Barbary people practiced state-sponsored predations, deploying many private ships (corsairs) to capture white people (AKA Saqaliba) on land and at sea and enslaving the as-Saqaliba and often holding them for ransom. Jefferson described the official actions of the Bashaw (Pasha) of Tripoli: "absolutely produces a state of war on his part", "open declaration of war", and their "attack". Jefferson consistently conveyed the idea of the Barbary people being predatory and preying upon others. He frequently described their actions (plundering, pillaging, murdering, enslaving) as "depredations," which means predatory. [Notes on the State of Virginia, Query 23] He refers to their actions as "unprovoked aggressions," highlighting the predatory nature of attacking without cause. [First Annual Message to Congress, 1801.] A recurring theme in Jefferson's writings is the idea that the Barbary States preyed on the commerce of other nations. This portrays them as criminals who unjustly attack peaceful shipping. He urged Congress to take action to protect, "commerce against the threatened attack." Jefferson describes the Barbary states, as hostile nations with "no regular system of law, it is applied by them with all the crude spirit of tyranny and rapine." He stated that the Barbary men's predatory incursions were "war" but "without the formality of a declaration of war."
Jefferson saw the predatory Barbary system of tribute-or-enslavement itself as a "war" against all white people: "a war of little expense to the [Islamic people of color] which must put the great [white] nations to a greater expense [to] buy it off." From as early as 1784, while serving as a diplomat in Europe, Jefferson strongly opposed paying tribute (bribes) to the Barbary States to protect American shipping. He considered it "humiliating" and correctly believed payment would only encourage further demands. Jefferson consistently campaigned for a military solution, believing that the use of military force and white supremacist violence would be more effective and less costly in the long run than paying tribute. He even questioned, "Would it not be better to offer them an equal treaty. If they refuse, why not go to war with them?"
In 1798, Jefferson campaigned against Adams by making the public argument that the 2year-expiring Alien Act was unconstitutional: "acts [of Congress] which assume to create, define, or punish crimes, other than those so enumerated in the Constitution, are altogether void, and of no force; and that the power to create, define, and punish such other crimes is reserved, and, of right, appertains solely and exclusively to the respective States"; "the act of the Congress of the United States, passed on the day of July, 1798, entitled 'An Act concerning aliens,' which assumes powers over alien friends, not delegated by the Constitution, is not law, but is altogether void, and of no force." Jefferson liked America's "Alien Friends" (e.g., the French or English) but Jefferson said nothing negative specifically about the "Alien Enemy" act of 1798. All of Jefferson's legal arguments concerning supposed implied limitations on the constitutional power of Congress were later specifically overruled by the US Supreme Court.
After Jefferson became US President he continued to refer to Barbary people as predators deserving of war:
"An Act for the Protection of Commerce of the U.S. in the Mediterranean", passed Feb 1802 was not a declaration of war, but it authorized President Jefferson to use the Navy in the Mediterranean. It was in response to years of predatory attacks on American merchant ships by Barbary marine gangs acting with the assent of the Barbary sultan. It sated that the, "...regency of Tripoli, on the coast of Barbary, has commenced a predatory warfare against the United States".
Jefferson's First Annual Message to Congress (1801):
In this message, Jefferson informed Congress of Tripoli's declaration of war and his decision to send a naval squadron to the Mediterranean. He justified this action as necessary to protect American commerce and citizens, and stated that Tripoli's actions were, "without the formality of a declaration of war." This demonstrates a proactive stance, using military force to prevent further "predatory" attacks by the people of a hostile nation action in the absence of a "declaration of war".
These documents, taken together, clearly show that the U.S. government, from the 1780s onward, was actively engaged in efforts to prevent predatory Barbary incursions and protect American shipping. The strategies employed (diplomacy, tribute, and ultimately military force and white supremacist violence against people of color) reflect the evolving debate and the growing recognition of the need for the use of force to counter the ongoing "predatory" threats of hostile nations.
There is no legitimate argument that the 1798 Alien Enemy Act did not by its express terms authorize Presidents Adams and Jefferson to deport from the US any predatory denizens or gangs immigrating from the hostile Barbary states despite the absence of a formal Declaration of War by Congress.
Hi Steve, APUSH, and AP Gov teacher here. I just came across this wonderful history when researching for my classes. One of the questions I have, and it may be a trivial or uninformed one, is this: What role, if any, does the Alien Enemies Act being passed before Marbury v Madison play in it's judicial history? You mention cases in which a claimant invoked judicial review for their own case when targeted by the act, but what of the act itself? Jefferson and Madison "knew" it was unconstitutional, but they had no recourse to the courts. No this is back in the news but the historical context is always lacking.
Trump certainly did not come up with the reference to the Alien Enemy Act on his own. Have to think someone (Stephen Miller?) posits that it would be a way around the provisions of the Immigration and Nationality Act which would provide for hearings before Immigration Judges for the large majority of non-US nationals who are present in the US without lawful status. Such individuals would then have the ability to appeal an unfavorable order to the Board of Immigration Appeals and then seek judicial review in one of the circuit courts of appeal. Haven't worked my way through your article so missed the explicit provision for judicial review under the Alien Enemy Act. Even without an explicit provision, would think review in habeas would be available.
SCOTUS's approach in Ludecke seems clearly unconstitutional (and dangerous and just plain lazy). It elevated form far over function. Worse, it elevated a mere statement about the end of a conflict over the text and purpose of a federal statute and even the text and purpose of the Constitution.
The text of the statute made clear that presidential action must be "necessary in the premises and for the public safety." By the terms of the statute, courts could not lawfully merely rely on the absence of some formal statement declaring the end of a conflict. The Constitution emphasized the same.
Article I emphasized that nobody in federal government could exercise any power that was not “necessary and proper for carrying into Execution” the “Powers vested by this Constitution in the Government of the United States” (for the purposes stated in the Preamble). As was emphasized by many Federalist and Antifederalist statements during the ratification debates, "necessary and proper" limited all federal powers. The Preamble highlighted that such detention had to be proved necessary "for the common defence." It's impossible to prove that detaining anyone at issue under the circumstances of that case could be necessary for national defense.
The conduct of SCOTUS justices in Ludecke reminds me of the misconduct of the majority in Trump v. United States (and in Alexander v. S.C. State Conf. of the NAACP). All three remind me of crucial warnings in The Federalist No. 78. Alexander Hamilton (quoting Montesquieu) emphasized, “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” Although “liberty can have nothing to fear from the judiciary alone,” it “would have every thing to fear from its union with either of the other departments.” The Ludecke, Trump and Alexander decisions are evidence of such dangerous unions.
Unconstitutional, dangerous, and lazy, yes. Also frustratingly consistent with the Court's usual approach to disputes over citizenship, going back at least to the Insular Cases and arguably all the way to Dred Scott. Wong Kim Ark is an important exception to that record, and I would not be surprised to see at least four votes from the current Court to abandon that precedent. If they even noticed as they trampled it.
Do you plan to write anything about Lackey v Stinnie? I thought that was a very interesting case but it got crowded out by the bigger cases argued last week
Japanese immigrants are issei (is- abbreviation of ishi, 1, -sei generation); their second-generation US citizen children are nisei (ni-, 2).
Yes--that was a typo that I've fixed above. Thanks!
Your column is very interesting, as usual, but I think you got the definitions of issei and nisei backwards. Issei are first-generation Japanese nationals who came to the U.S., while nisei are the second generation who were born as U.S. citizens.
Yes--that was a typo that I've fixed above. Thanks!
I am way more pessimistic about the courts’ deference to (Republican) presidential authority. Having deferred once to a president’s power to define when a war ended, why wouldn’t SCOTUS, particularly this SCOTUS, defer on the incursion/invasion language? The real question to me is whether invoking this particular act gives a president broader enforcement latitude than the existing laws/regulations, how it interacts with other statutes on the books, what it means for documented immigrants who are not yet nationalized and what it portends for US citizens assisting them (do they become liable for treason?).
Thank you for this article, Steve.
The conduct of the SCOTUS justices in Ludecke (allowing detention of people despite the absence of any nexus with either necessity or defense) reminds me of the willful blindness inherent in the tyranny of today's majority (of SCOTUS) with respect to self-defense and self-preservation. The text and purpose of the Second Amendment (and precedent thereunder) are relevant to both situations.
The Second Amendment emphasized conduct that was "necessary to the security of a free State." But I agree with SCOTUS in Heller and Bruen that the Second Amendment is about something far different from what the text of the amendment reveals (except for the words "right of the people" to do what is "necessary" for their "security"). It obviously is not limited to any "right" to merely "keep" or merely "bear" any kind of "arms" or about mere "arms," in general. It obviously is about something both far more capacious and far more constrained than "arms."
The same six justices responsible for Dobbs were responsible for N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). SCOTUS published Bruen one day before Dobbs. In Bruen, the Dobbs justices invoked District of Columbia v. Heller, 554 U.S. 570 (2008):
In [Heller] the Court [acknowledged] that the Second Amendment [really] protects the right to [ ] self-defense. [Clearly, the Second] Amendment codified a preexisting right and that this right was regarded at the time of the Amendment’s adoption as rooted in “‘the natural right of [ ] self-preservation.’” [ ] “[T]he inherent right of self-defense,” Heller explained, is “central to the Second Amendment right.”
Heller, in fact, was far more emphatic and well-supported. “By the time of the founding, the right” of self-preservation was “fundamental for English subjects.” “Blackstone” (whose works, SCOTUS has said, “constituted the preeminent authority on English law for the founding generation”) in 1765 cited the relevant “provision of the [English] Bill of Rights [of 1689] as one of the fundamental rights of Englishmen.” Blackstone’s “description” emphasized “the natural right” of “self-preservation” and “the right” of “self-preservation and defence.” Moreover, “the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear” in 1803 that “Americans understood” the “right of self-preservation.”
In their own “review of founding-era sources,” the Heller majority found “nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens” to use deadly force against other actual people “in defense of themselves” or “in defense of himself.”
“Justice James Wilson” similarly “interpreted the Pennsylvania Constitution’s” relevant “right” as “a recognition of the natural right of defense” of “one’s person or house” which “he called the law of “self preservation.” Wilson explained this “constitutional right” was “one of our many renewals of the Saxon regulations.”
Anyone sincerely and seriously supporting our Constitution would compare Dobbs with Bruen, Heller and the Preamble (the Constitution’s first, most fundamental and most important text) and recognize the right of women to self-defense and self-preservation. Heller and Bruen necessarily did recognize the right of women to self-defense and self-preservation, even if they needed to terminate the life or lives of one or more actual persons.
Heller and Bruen (and the authorities they invoked) and the Preamble (especially when viewed in light of the First, Second, Fourth, Ninth, Tenth, Fourteenth, Fifteenth and Nineteenth Amendments) extremely strongly and extremely clearly confirmed a woman’s constitutional right to defend or protect herself, even if she must terminate her own pregnancy to do so. They extremely strongly and extremely clearly confirmed that the people did not (in any federal or state constitution) delegate to public servants any power to deprive of us such liberty.
Isn't the "invasion or predatory incursion” bit going to run into difficulties with what we hear is the MOST common category of undocumented immigrant: the ones who entered legally, usually with visas, and just stayed. If the US treats tourists as "invaders" or "predatory" there is an industry about to get slammed into extinction.
Im probably not fully understanding this, but can anyone help clarify this distinction for me?
“the statute the Supreme Court upheld in Korematsu merely made it a crime to violate an exclusion order; it didn’t affirmatively authorize the exclusion.”
Aren’t these 2 things effectively the same?
Not really; folks who complied with the exclusion and *then* challenged their detention on the ground that it was unlawful eventually won.
Interesting, I definitely need to read Ex Parte Endo but I’m pretty confused why the same Court that says the exclusion orders are constitutional and can’t be violated (in Korematsu) would say the very opposite (in Endo) just because the plaintiffs complied with the order in 1 case but not the other
Fred Korematsu was arrested because he did not report as purportedly ordered. Years later on 11/10/83 with extended family members present in court, Korematsu vs U.S. was overturned, by Presiding Judge Marilyn Patel in the Northern District of California on a Writ.
Oh interesting, can a lower court overturn a Supreme Court case like that? I thought there was some (very disingenuous) language in Trump v Hawaii where the Court officially overturned Korematsu
Maybe somebody should help Trump with some simple math. That statute is from 1798. Our Constitution was written in 1787 and ratified in 1789. In 1798 the statute targeted "predatory incursion" or "invasion." In 1798, our Constitution expressly protected "Migration" of "Persons." It expressly emphasized that such "Migration" of "such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight." Clearly, "predatory incursion" or "invasion" did not encompass "Migration." During that period, massive numbers of people who were not citizens already were in many states and many more being allowed (or brought) into many states. And (in 1798) the Constitution prohibited the federal government from doing anything to stop or even stem such "Migration" for another 10 years in a manner contrary to what "any of the States" might "think proper." Multiple states that benefitted from that clause of the Constitution in 1798 were on the opposite side of the federal government in 1798, including Virginia (dominated by the virulently anti-Federalist, pro-French Republicans led by Jefferson).
Even Professor Steven Vladeck admits that "the Alien Enemy Act ... had nothing to do with the Japanese American internment camps". He notes that malevolent people are making "FALSE" "claims that the same statute had formed the basis for the Japanese American internment camps during the Second World War"
https://www.stevevladeck.com/p/103-alien-enemies-and-the-court
https://law.lclark.edu/live/files/9549-lcb114art5vladekpdf
While Professor Vladeck has expert knowledge of the contents of AEA caselaw, he has no expert knowledge about the application of the AEA statute in the circumstance of "predatory incursion" because none of the caselaw he cites involved that circumstance. Professor Vladeck does not even use the phrase "predatory incursion" in his AEA article at:
https://law.lclark.edu/live/files/9549-lcb114art5vladekpdf
In his recent internet blog, Professor Vladeck explicitly admits that "there is no case law about the 'invasion or predatory incursion' language" of the AEA statute.
The AEA statute was enacted three years prior to the commencement of the First Barbary War (1801) waged by President Jefferson. This context establishes that Congress intended that the statute shall have some immediate application in a pre-war context. The explicit "or ... predatory incursion" (as opposed to 'military incursion' or "invasion") conclusively proves that the AEA is NOT limited in application to aliens "in wartime" nor limited to military-invasion. The statute's reference to "predatory" aliens native to a "hostile" government having an existing "treaty" focuses attention upon the nations with which the United States had hostility and/or treaty by 1798: Barbary (North Africa) States: Tripoli, Tunis, Algeria, Morocco (and England / France). The denizens of Tripoli are specifically referenced in the 1789 US Constitution as "pira[tes]" and three years after the enactment of the AEA, the United States declared war and returned war against the "pirates" of Tripoli.
See "Jihad in the days of Jefferson
"18th century Muslim privateers felt it was their duty to [prey upon/ enslave] infidels wherever they were. ... In 1783, Muslim pirates - the sea-faring terrorists of their day - began attacking American merchant vessels in the Mediterranean, and the following year, the Moroccans captured a brig called Betsey and enslaved its crew. Soon afterwards, the ruler of Algiers declared war on the US, a declaration backed up by marauding corsairs. The situation worsened with each coming year..."
https://www.jpost.com/arts-and-culture/books/jihad-in-the-days-of-jefferson
It cannot be credibly disputed that that the 1798 AEA authorized the President of the United States (John Adams) to immediately order the deportation/removal of any "predatory" denizens of the hostile nation of Tripoli (even though Congress did not formally authorize/declare War against Tripoli until 3 years later in 1801 at the prompting of President Jefferson) John Adams, the President who procured the 1798 AEA from Congress, was one of the two American diplomats who were told to their faces in 1786 that these Islamic States would never stop preying upon (e.g., enslaving) white people (e.g., Americans); because it is The Will of Allah that Muslims must do Jihad against the White Supremacists (i.e., must enslave the Saqaliba infidels who refuse to submit to Islamic Rule, e.g., refuse to pay the Jizya Tax). And, by 1798 the foreign policy of France had hostilely changed to allow (not prevent) the Islamic State's privateers (aka Barbary Pirates) to prey upon Americans at sea and on land.
Moroccan-American Treaty of Peace and Friendship (1786):
Parties: United States, Morocco.
Description: Established peaceful relations and protected American merchant ships from Moroccan corsairs. This treaty still stands today.
1789:
The need to make enforceable agreements with foreign nations (e.g. The Barbary States) prompted the replacement of the Articles of Confederation. The new US Constitution gave the federal government control of commerce, and the authority to enter into treaties and provided a strong executive (President) to enforce treaties and the law of nations.
Treaty with Algiers (1795):
Parties: United States, Algiers.
Description: Secured the release of American white supremacists held captive and, while requiring tribute payments, aimed to establish peace.
The Naval Act of 1794:
This act, passed by Congress and signed by President Washington, authorized the construction of six frigates, specifically in response to the Barbary threat. This is a clear, concrete action demonstrating the intent to build a naval force capable of protecting American commerce from predations. The act was a direct response to Algerian seizures of American ships. The act provided for six frigates, and "...in the event of a declaration of war on the United States by the Barbary powers, these ships were to 'protect our commerce and chastise their insolence-by sinking, burning or destroying their ships and vessels wherever you shall find them.'"
Treaty with Tripoli (1796):
Parties: United States, Tripoli.
Description: Aimed to protect U.S. shipping from piracy.
Involve ransom for enslaved white supremacists and also, required tribute payments.
Treaty with Tunis (1797):
Parties: United States, Tunis
Description: Like the treaties with Algiers and Tripoli, it was made with another of the Barbary States to create peace and protect U.S. interests, though it involved payment of tribute.
A Future declaration of war against the "pirates" of Tripoli, Tunis, and/or Algiers was foreseen by Congress in 1798, and by President Adams who signed the AEA legislation. And future-President Jefferson had been campaigning for this particular war long before 1798, later describing the actions of the Barbary marine gangs as "predatory warfare". "The motives pleading for war rather than tribute are numerous and honorable, those opposing them mean and short-sighted.". [Jefferson: Report as Minister to France, 1786]
"Tribute or war is the usual alternative of these pirates. If we yield the former, it will require sums which our people will feel. Why not begin a navy then and decide on war?"
The Barbary people practiced state-sponsored predations, deploying many private ships (corsairs) to capture white people (AKA Saqaliba) on land and at sea and enslaving the as-Saqaliba and often holding them for ransom. Jefferson described the official actions of the Bashaw (Pasha) of Tripoli: "absolutely produces a state of war on his part", "open declaration of war", and their "attack". Jefferson consistently conveyed the idea of the Barbary people being predatory and preying upon others. He frequently described their actions (plundering, pillaging, murdering, enslaving) as "depredations," which means predatory. [Notes on the State of Virginia, Query 23] He refers to their actions as "unprovoked aggressions," highlighting the predatory nature of attacking without cause. [First Annual Message to Congress, 1801.] A recurring theme in Jefferson's writings is the idea that the Barbary States preyed on the commerce of other nations. This portrays them as criminals who unjustly attack peaceful shipping. He urged Congress to take action to protect, "commerce against the threatened attack." Jefferson describes the Barbary states, as hostile nations with "no regular system of law, it is applied by them with all the crude spirit of tyranny and rapine." He stated that the Barbary men's predatory incursions were "war" but "without the formality of a declaration of war."
Jefferson saw the predatory Barbary system of tribute-or-enslavement itself as a "war" against all white people: "a war of little expense to the [Islamic people of color] which must put the great [white] nations to a greater expense [to] buy it off." From as early as 1784, while serving as a diplomat in Europe, Jefferson strongly opposed paying tribute (bribes) to the Barbary States to protect American shipping. He considered it "humiliating" and correctly believed payment would only encourage further demands. Jefferson consistently campaigned for a military solution, believing that the use of military force and white supremacist violence would be more effective and less costly in the long run than paying tribute. He even questioned, "Would it not be better to offer them an equal treaty. If they refuse, why not go to war with them?"
In 1798, Jefferson campaigned against Adams by making the public argument that the 2year-expiring Alien Act was unconstitutional: "acts [of Congress] which assume to create, define, or punish crimes, other than those so enumerated in the Constitution, are altogether void, and of no force; and that the power to create, define, and punish such other crimes is reserved, and, of right, appertains solely and exclusively to the respective States"; "the act of the Congress of the United States, passed on the day of July, 1798, entitled 'An Act concerning aliens,' which assumes powers over alien friends, not delegated by the Constitution, is not law, but is altogether void, and of no force." Jefferson liked America's "Alien Friends" (e.g., the French or English) but Jefferson said nothing negative specifically about the "Alien Enemy" act of 1798. All of Jefferson's legal arguments concerning supposed implied limitations on the constitutional power of Congress were later specifically overruled by the US Supreme Court.
After Jefferson became US President he continued to refer to Barbary people as predators deserving of war:
"An Act for the Protection of Commerce of the U.S. in the Mediterranean", passed Feb 1802 was not a declaration of war, but it authorized President Jefferson to use the Navy in the Mediterranean. It was in response to years of predatory attacks on American merchant ships by Barbary marine gangs acting with the assent of the Barbary sultan. It sated that the, "...regency of Tripoli, on the coast of Barbary, has commenced a predatory warfare against the United States".
Jefferson's First Annual Message to Congress (1801):
In this message, Jefferson informed Congress of Tripoli's declaration of war and his decision to send a naval squadron to the Mediterranean. He justified this action as necessary to protect American commerce and citizens, and stated that Tripoli's actions were, "without the formality of a declaration of war." This demonstrates a proactive stance, using military force to prevent further "predatory" attacks by the people of a hostile nation action in the absence of a "declaration of war".
These documents, taken together, clearly show that the U.S. government, from the 1780s onward, was actively engaged in efforts to prevent predatory Barbary incursions and protect American shipping. The strategies employed (diplomacy, tribute, and ultimately military force and white supremacist violence against people of color) reflect the evolving debate and the growing recognition of the need for the use of force to counter the ongoing "predatory" threats of hostile nations.
There is no legitimate argument that the 1798 Alien Enemy Act did not by its express terms authorize Presidents Adams and Jefferson to deport from the US any predatory denizens or gangs immigrating from the hostile Barbary states despite the absence of a formal Declaration of War by Congress.
Hi Steve, APUSH, and AP Gov teacher here. I just came across this wonderful history when researching for my classes. One of the questions I have, and it may be a trivial or uninformed one, is this: What role, if any, does the Alien Enemies Act being passed before Marbury v Madison play in it's judicial history? You mention cases in which a claimant invoked judicial review for their own case when targeted by the act, but what of the act itself? Jefferson and Madison "knew" it was unconstitutional, but they had no recourse to the courts. No this is back in the news but the historical context is always lacking.
Report that he's on the verge. https://www.aol.com/trump-expected-invoke-wartime-alien-200415351.html?fbclid=IwZXh0bgNhZW0CMTEAAR25iua3TjgF9-7U8gP1i5JlzWxqIDD8s-jR_UHIEvIjk72vZ_vuCqR7phk_aem_hEkj3OIZE6B5wnJWDwSd8Q&guccounter=1&guce_referrer=aHR0cDovL20uZmFjZWJvb2suY29tLw&guce_referrer_sig=AQAAAHK_mvz6U13uN9bIPumJRDBbsKj8bQEJywhqe1FugWmdLESg9te_fXWPDf_0YRUofbyycnNQw58V8uldOPfQDiANriCUcC23QZS7jibX9o9UHFUHUpXSbIGm67f_8Opd7EvTbveJQDA2-sD_tF8xqOyj5YlJtnJJNvqzQiwBlyRD
Trump certainly did not come up with the reference to the Alien Enemy Act on his own. Have to think someone (Stephen Miller?) posits that it would be a way around the provisions of the Immigration and Nationality Act which would provide for hearings before Immigration Judges for the large majority of non-US nationals who are present in the US without lawful status. Such individuals would then have the ability to appeal an unfavorable order to the Board of Immigration Appeals and then seek judicial review in one of the circuit courts of appeal. Haven't worked my way through your article so missed the explicit provision for judicial review under the Alien Enemy Act. Even without an explicit provision, would think review in habeas would be available.
SCOTUS's approach in Ludecke seems clearly unconstitutional (and dangerous and just plain lazy). It elevated form far over function. Worse, it elevated a mere statement about the end of a conflict over the text and purpose of a federal statute and even the text and purpose of the Constitution.
The text of the statute made clear that presidential action must be "necessary in the premises and for the public safety." By the terms of the statute, courts could not lawfully merely rely on the absence of some formal statement declaring the end of a conflict. The Constitution emphasized the same.
Article I emphasized that nobody in federal government could exercise any power that was not “necessary and proper for carrying into Execution” the “Powers vested by this Constitution in the Government of the United States” (for the purposes stated in the Preamble). As was emphasized by many Federalist and Antifederalist statements during the ratification debates, "necessary and proper" limited all federal powers. The Preamble highlighted that such detention had to be proved necessary "for the common defence." It's impossible to prove that detaining anyone at issue under the circumstances of that case could be necessary for national defense.
The conduct of SCOTUS justices in Ludecke reminds me of the misconduct of the majority in Trump v. United States (and in Alexander v. S.C. State Conf. of the NAACP). All three remind me of crucial warnings in The Federalist No. 78. Alexander Hamilton (quoting Montesquieu) emphasized, “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” Although “liberty can have nothing to fear from the judiciary alone,” it “would have every thing to fear from its union with either of the other departments.” The Ludecke, Trump and Alexander decisions are evidence of such dangerous unions.
Unconstitutional, dangerous, and lazy, yes. Also frustratingly consistent with the Court's usual approach to disputes over citizenship, going back at least to the Insular Cases and arguably all the way to Dred Scott. Wong Kim Ark is an important exception to that record, and I would not be surprised to see at least four votes from the current Court to abandon that precedent. If they even noticed as they trampled it.
Thank you, informative as always!
Do you plan to write anything about Lackey v Stinnie? I thought that was a very interesting case but it got crowded out by the bigger cases argued last week