A History of the Alien Enemies Act of 1798

 

The Alien Enemies Act of 1798, formally titled "An Act Concerning Aliens," is one of four pieces of legislation collectively known as the Alien and Sedition Acts, passed by the United States Congress during the presidency of John Adams. Enacted on July 6, 1798, it remains one of the most enduring components of this controversial legislative package, as it is still technically in effect today, codified under 50 U.S.C. §§ 21–24. The Act was born out of a period of intense political tension and fear of foreign influence, particularly amid the Quasi-War with France, an undeclared naval conflict that heightened national security concerns.

Historical Context

In the late 1790s, the United States found itself caught in the crossfire of European conflicts, particularly between revolutionary France and Great Britain. The young American republic, still fragile and establishing its sovereignty, faced internal divisions between the Federalist Party, led by Adams and Alexander Hamilton, and the Democratic-Republican Party, led by Thomas Jefferson and James Madison. The Federalists, who controlled Congress and the presidency, viewed France’s revolutionary fervor—and its sympathizers within the U.S.—as a threat to national stability. Reports of French espionage and influence, coupled with the XYZ Affair (a diplomatic incident exposing French demands for bribes), fueled paranoia about foreign subversion.

The Alien and Sedition Acts were a Federalist response to these fears. While the Sedition Act targeted domestic dissent and the Alien Friends Act (expired in 1800) allowed the president to deport non-citizens deemed dangerous, the Alien Enemies Act specifically addressed the treatment of citizens or subjects of a foreign nation during wartime.

Provisions of the Act

The Alien Enemies Act granted the president broad authority to apprehend, restrain, and deport "all natives, citizens, denizens, or subjects" of a hostile nation or government with which the United States was at war. Key features included:

• Wartime Trigger: The law applies only when the U.S. is engaged in a declared war or when an enemy nation has invaded or threatened U.S. territory.
• Presidential Power: The president can issue a proclamation identifying the targeted group and outlining measures such as internment, deportation, or restrictions on movement and property.
• Scope: It applies to individuals over the age of 14 who are from the enemy nation and not naturalized as U.S. citizens.

Unlike the Alien Friends Act, which expired, the Alien Enemies Act had no sunset clause, reflecting its design as a permanent tool for wartime emergencies.

Early Use and Controversy

The Act was not heavily invoked during the Quasi-War, as that conflict remained undeclared and limited in scope. However, its passage sparked immediate backlash. Democratic-Republicans, including Jefferson and Madison, condemned the Alien and Sedition Acts as unconstitutional overreaches, arguing they violated individual liberties and states’ rights. The Virginia and Kentucky Resolutions of 1798–1799, penned by Madison and Jefferson respectively, asserted that states could nullify federal laws deemed unconstitutional—a direct challenge to the Acts’ legitimacy. Public opposition contributed to Jefferson’s victory over Adams in the 1800 election, after which most of the Alien and Sedition Acts were allowed to lapse or were repealed. The Alien Enemies Act, however, persisted.

Notable Historical Applications

While rarely used in its early years, the Act has been invoked during major conflicts:

• War of 1812: President James Madison used it to regulate British subjects in the U.S., though its application was limited compared to later instances.
• World War I: In 1917, President Woodrow Wilson issued proclamations under the Act targeting German nationals. Over 6,000 "alien enemies" were interned, and thousands more faced restrictions on property and movement. This marked the first significant use of the law on a large scale.
• World War II: The Act saw its most infamous application following Japan’s attack on Pearl Harbor in December 1941. President Franklin D. Roosevelt issued proclamations targeting Japanese, German, and Italian nationals. While Executive Order 9066 (authorizing Japanese-American internment) is better known, the Alien Enemies Act provided the legal framework for detaining approximately 31,000 "alien enemies," including 11,000 Japanese, 10,000 Germans, and smaller numbers of Italians and others. These individuals were distinct from the broader internment of Japanese-American citizens, which relied on separate authority.

Legal Evolution and Modern Status

Over time, the Act’s scope has been tempered by legal and societal changes. The 14th Amendment (1868) and subsequent Supreme Court rulings have established due process protections that limit its arbitrary application. For example, during World War II, interned aliens received hearings before enemy alien boards, though these were often cursory. Today, any use of the Act would likely face scrutiny under modern constitutional standards, particularly regarding equal protection and civil liberties.

Despite its age, the Alien Enemies Act remains on the books. Legal scholars debate its relevance in an era of global terrorism and undeclared conflicts, as its text requires a formal state of war or invasion—conditions not met in modern counterterrorism efforts like the War on Terror. Proposals to repeal or amend it have surfaced periodically, but none have succeeded, leaving it as a dormant but potent tool.

Legacy

The Alien Enemies Act of 1798 reflects a recurring tension in American history between national security and individual rights. Its origins in the partisan strife of the early republic and its use during 20th-century wars highlight how fear of "the other" can shape policy. While it has not been invoked since World War II, its continued existence serves as a reminder of the enduring challenges of balancing liberty and order in times of crisis.

 NOTE:

There have been no direct Supreme Court cases striking down the Alien Enemies Act of 1798 as unconstitutional. However, the law has been invoked in several instances, most notably during World War I and World War II, leading to legal challenges that reached the Supreme Court.

Key Supreme Court Cases Related to the Alien Enemies Act

1. Ludecke v. Watkins (1948)

• Facts: During World War II, President Franklin D. Roosevelt used the Alien Enemies Act to order the deportation of German nationals deemed a threat. After the war ended, Kurt G.W. Ludecke, a German national with alleged Nazi ties, challenged his continued detention and pending deportation.

• Supreme Court Ruling: The Court ruled in favor of the government, holding that the war had not officially ended (as no formal treaty had been signed), and thus, the president's power under the Alien Enemies Act remained in effect.

• Significance: This case reaffirmed the broad executive power granted by the Alien Enemies Act, even extending beyond active combat periods.

2. Ex parte Endo (1944) (Related to Enemy Alien Policies)

• Facts: While not directly about the Alien Enemies Act, this case involved Mitsuye Endo, a Japanese-American who challenged her forced internment under Executive Order 9066.

• Supreme Court Ruling: The Court ruled in favor of Endo, stating that a loyal U.S. citizen could not be detained without cause.

• Significance: While this decision helped lead to the end of Japanese internment, it did not directly challenge the Alien Enemies Act. However, it raised concerns about the government’s broad wartime powers.

Why Hasn't the Supreme Court Overturned the Alien Enemies Act?

• It has rarely been directly challenged. Instead, cases have focused on specific executive actions taken under it.

• The Court has historically deferred to the executive branch in wartime matters. Cases like Ludecke v. Watkins demonstrate that the judiciary often upholds broad presidential power regarding national security.

• It remains in U.S. law today (codified in 50 U.S.C. §§ 21–24) and could theoretically still be used in a future declared war.

Conclusion

While the Alien Enemies Act of 1798 has faced legal scrutiny, it has never been declared unconstitutional. The Supreme Court has generally upheld its provisions when invoked, emphasizing the executive branch's authority during wartime.