They Don’t Write ’Em Like They Used To

~ 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 throws 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. (CONTINUE to Complete posting: The 225-year-old ‘Alien Enemies Act’)