In his inaugural address last Monday, President Donald Trump dug deep into the archives to unearth a law that would empower his campaign against immigrants. “By invoking the Alien Enemies Act of 1798,” Trump announced, “I will direct our government to use the full and immense power of federal and state law enforcement to eliminate the presence of all foreign gangs and criminal networks bringing devastating crime to U.S. soil, including our cities and inner cities.”
A wartime authority that allows the president to detain or deport the “natives” and citizens of an enemy nation, the Alien Enemies Act has been invoked just three times in American history, each during a major conflict: the War of 1812, World War I, and World War II. It is best known for its role in Japanese incarceration during World War II, a shameful part of U.S. history for which Congress and several presidents have apologized.
The Alien Enemies Act provides sweeping powers to detain or deport foreign nationals and is ripe for abuse, according to experts. The archaic law discriminates against immigrants based on their country of citizenship and, more broadly, based on their ancestry. It also requires no evidentiary thresholds and provides no due process protections, like the right to a hearing or the right to appeal. “What else has been so aggressively rejected — by presidents, Congress, and the judiciary — and considered one of the most shameful episodes in American history and then revived?” asked Katherine Yon Ebright of the Brennan Center’s liberty and national security program and one of the foremost experts on the Alien Enemies Act. “President Trump should leave the Alien Enemies Act in the dustbin of history.”
When the law was last invoked in World War II, the Alien Enemies Act provided the legal authority for incarcerating noncitizens of Japanese, German, and Italian descent. It allows presidents to target people because of their identity, not their conduct or the threat they pose to national security. Last week, Rep. Ilhan Omar, D-Minn., and Sen. Mazie Hirono, D-Hawaii, reintroduced the Neighbors Not Enemies Act, legislation that would repeal the AEA.
“We cannot allow antiquated laws to continue enabling discriminatory practices that harm immigrant communities. The Alien Enemies Act has been used to target immigrants based solely on their nationality, leading to shameful chapters in our history,” said Omar. “President Trump’s new administration is also threatening to use this law for sweeping detentions and deportations of immigrants without due process based solely on national origin. Repealing this law is a necessary step toward creating an immigration system rooted in justice and compassion.”
The Alien Enemies Act is the last remaining portion of the notorious 18th-century Alien and Sedition Acts, which made it illegal to criticize the president or Congress and were excoriated by founding fathers Thomas Jefferson and James Madison.
In 1941, President Franklin D. Roosevelt used the Alien Enemies Act to arrest and detain citizens of Japan, Germany, and Italy without due process in Department of Justice “internment” camps. In 1942 he followed this up with Executive Order 9066, which ultimately forced 120,000 men, women, and children of Japanese descent — nearly 70,000 of them American citizens — from their homes and into detention centers. Framed as a national security issue, it was rooted in racism and xenophobia. “We want to keep this a white man’s country,” said Bert Miller, Idaho’s attorney general, at the time. “All Japanese [should] be put in concentration camps for the remainder of the war.”
In the decades that followed, Roosevelt’s successors came to roundly condemn internment. “This action was taken without trial, without jury. It was based solely on race,” President Ronald Reagan observed in 1988, signing a bill to provide reparations for the incarceration of Japanese Americans, which he deemed “a mistake.” That same year, Congress acknowledged that the policy was based on “racial prejudice, war hysteria and the failure of political leadership.” The Department of Justice later determined that German noncitizens had been targeted “based on their ancestry,” and Congress described Italian internment as a “fundamental injustice.”
In 1990, nine former detainees of America’s incarceration camps received the first $20,000 reparations payments as well as a formal apology signed by President George H.W. Bush which declared: “We can never fully right the wrongs of the past. But we can take a clear stand for justice and recognize that serious injustices were done to Japanese Americans during World War II.” Last year, President Joe Biden continued the tradition by “reaffirming the Federal Government’s formal apology to Japanese Americans. And by stating unequivocally: Nidoto nai yoni – to ‘Let It Not Happen Again.’”
On inauguration day, Trump signed an executive order directing, within two weeks, the attorney general and the secretary of homeland security, in consultation with the secretary of state, “to make operational preparations regarding the implementation of any decision I make to invoke the Alien Enemies Act.” The White House also announced that the president would “begin the process of designating cartels, including the violent Venezuelan gang Tren de Aragua, as foreign terrorist organizations and use the Alien Enemies Act to remove them.” Last year, the Biden administration designated Tren de Aragua as a transnational criminal organization akin to MS-13 from El Salvador and the Mafia-like Camorra in Italy.
White House spokesperson Taylor Rogers acknowledged The Intercept’s questions about Trump’s decision-making process on the Alien Enemies Act but did not provide answers prior to publication.
Ebright, who has written extensively on the AEA for the Brennan Center, notes that during World War I and II, the law was used to target anyone “deemed dangerous.” That, however, is a designation without definition. “There is no evidentiary threshold for showing that someone, in fact, is dangerous. The Alien Enemies Act has no due process protections that would ensure that Venezuelans detained and deported actually have a criminal history or are a public safety threat,” Ebright explained. “When the president deems someone dangerous, the law does not provide any due process protections. There is no guarantee of a hearing, a right to appeal, or a right to counsel.”
The Alien Enemies Act covers not only the citizens of a foreign belligerent, but also all its “natives,” including individuals who were born in the designated nation but have renounced their citizenship and no longer owe any allegiance to that state. “If the president declared that all Venezuelans who have not achieved U.S. citizenship are subject to detention or deportation, that is within the scope of the Alien Enemies Act,” Ebright said. “So that would be discrimination based on the citizenship someone holds, but also on the place of birth of a person, in essence, their ancestry.”
“It doesn’t allow them to target the Sinaloa Cartel, it allows them to target all Mexicans.”
Omar echoed this in an email to The Intercept. “The Alien Enemies Act targets people based on their nationality, not based on their behavior,” the Minnesota representative wrote. “It doesn’t allow them to target Tren de Aragua, it allows them to target all Venezuelans. It doesn’t allow them to target the Sinaloa Cartel, it allows them to target all Mexicans. This includes green card holders. It includes people who are themselves victims of the cartels and gangs.”
Trump’s embrace of the Alien Enemies Act has both traumatized and galvanized victims of incarceration during World War II and their descendants. “I miss my parents every day, but I’m thankful that they didn’t live to experience this. I really did not expect to see this in my lifetime,” said Mike Ishii, whose mother’s family was incarcerated in the camps and whose father’s family fled the West Coast to avoid detention. Ishii is the co-founder of Tsuru for Solidarity, an activist organization composed of Japanese American concentration camp survivors, their descendants, and allies that formed during Trump’s first term to oppose immigrant detention. He said the community was still dealing with intergenerational trauma born of the internment experience. “If you want to understand a deeper Japanese American emotional and psychological response, you have to look at our history,” Ishii told The Intercept. “We were a group of people that were targeted because of our race, forcibly removed at gunpoint, stripped of our rights, and imprisoned for years.”
Despite his embrace of the Alien Enemies Act, Trump has tacitly acknowledged the injustice of the incarceration of Japanese Americans during the 1940s by comparing them with a group he sympathizes with. Last year, Trump drew fire by comparing Japanese Americans forcibly removed to detention camps without due process to rioters convicted of charges after storming the U.S. Capitol on January 6, 2021. “Why are they still being held? Nobody’s ever been treated like this,” Trump said in an interview with conservative commentator Dan Bongino in October. “Maybe the Japanese during Second World War, frankly. They were held too.”
On his first day in office, Trump granted clemency to more than 1,500 people charged in the January 6 insurrection, including more than 200 who pleaded guilty to assaulting police.
Ishii expressed outrage at Trump’s comparison of the two groups. “It’s disingenuous and utterly offensive for Donald Trump to make a correlation between Japanese Americans who were forcibly removed at gunpoint from their neighborhoods during World War II, detained in U.S. concentration camps, denied their civil liberties and stripped of their human rights with Trump supporters who willfully attempted to overthrow the U.S. government in a violent coup,” he told The Intercept. “The seditionists of January 6th were not martyrs or victims. They have no moral authority. They’re violent criminals.”
Ebright noted that, over the past decades, official apologies for Japanese incarceration cited not only the need to express regret and provide reparations for moral reasons and in recognition of past violations of constitutional rights, but also to “discourage the occurrence of similar injustices and violations of civil liberties in the future,” she said. “They meant to instruct future generations to never do this again.”
The White House did not provide answers to questions citing experts’ concerns over the Alien Enemies Act, specifically the propriety of reviving a law with such a dark history and whose use has been roundly rejected by previous presidents.
“The Alien Enemies Act is a relic of a xenophobic past — a draconian law that empowers presidents to target immigrants without due process,” Omar, who warned that employing the 18th-century law again would be “another moral stain on our country.”
