President Donald Trump on Friday issued a proclamation invoking the Alien Enemies Act to deport members of the Venezuelan Tren de Aragua gang. Predictably, this move drew the ire of anti-borders activists, who classified it as an attempt to circumvent due process protections for illegal aliens. Critics claimed that the legislation can be used only in times of war, but do they have a legal leg to stand on? For several significant reasons, they do not.
The Alien Enemies Act was first passed in 1798 as one of four pieces of legislation collectively — and erroneously — referred to as the “Alien and Sedition Acts.” These laws were implemented in response to the undeclared Quasi-War with France — bolstering the federal government’s power to react to national security threats.
The Supreme Court has repeatedly affirmed that noncitizens have no constitutional right to stay in the US unlawfully.
Contrary to popular open-border narratives, these laws were not originally universally reviled. Many Americans saw them as necessary measures to ensure the safety and sovereignty of their newly established nation. Out of the four laws, however, only the Alien Enemies Act survived; the others either expired or were replaced before the Supreme Court established judicial review in 1803 with Marbury v. Madison.
Where does that leave the Trump administration today? Historically, the Alien Enemies Act has been used during wartime or in response to an invasion, such as the War of 1812 and World Wars I and II. The law itself was written broadly, however. It states that when the United States is at war with a foreign nation — or when an “invasion or predatory incursion” occurs — the president has the authority to detain and remove citizens of the hostile country. […]
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