Kilmar Abrego Garcia, an alleged MS-13 gang member and citizen from El Salvador, has become an avatar of The Resistance 2.0. The story of his deportation to El Salvador under the Alien Enemies Act of 1798 has been twisted into an allegory for life under the second Trump administration. In the words of Rep. Alexandria Ocasio Cortez, D-N.Y.: “Kilmar is all of us.”
Nevertheless, the Trump administration continues to plow forward with the application of the Alien Enemies Act of 1798 to remove criminal illegals from the country—even as lower court judges have tried to stop the practice and are now threatening the administration with criminal referrals.
Stephen Miller, White House deputy chief of staff for policy, has taken a primary role in arguing the administration’s justification for the use of the Alien Enemies Act. Miller’s argument centers on the president’s prerogative in foreign affairs as enshrined in Article II of the Constitution.
“The president of the United States and his administration reserve all rights under the Constitution to conduct national security operations in defense of the United States,” according to Miller. Thus, Miller has argued that “a district court judge can no more enjoin the expulsion of foreign terrorists to foreign soil, than he can direct the movement of Air Force One, than he can direct the movement of an aircraft carrier.”
While the main thrust of Miller’s argument focuses on Article II powers, the Trump consigliere has repeatedly incorporated a historical appeal to the founding era. The “Alien Enemies Act has been on the books and has been upheld for over 200 years,” Miller said. “And by the way, the fact that it’s a 200-year-old law makes it stronger. This was adopted by the founding generation of our country.”
Meanwhile, the Left has claimed the Trump administration is abusing presidential authority not only by contesting decisions from federal courts but by the employment of the Alien Enemies Act itself.
Under this line of argument, the president’s use of the Alien Enemies Act is incumbent on a formal declaration of war by Congress or by foreign military action against the United States. Furthermore, the Left has argued the administration has stretched the meaning of “invasion” beyond the statute by applying it to gangs like MS-13 and Tren De Aragua.
These lines of attack against the Trump administration are in contradiction with one another. While the first line of argument asserts the need for a declaration of war from Congress to use the Alien Enemies Act, the other lines of argument clearly suggests there are circumstances in which a declaration of war is not necessary for its use. This is particularly clear with respect to their objection to the Trump administration calling the migrant crime crisis an “invasion.” Either the president has the ability to determine what constitutes an invasion, and can therefore use the Alien Enemies Act, or he does not, and that determination is solely left to Congress.
Therefore, the key question is whether or not the founding generation understood the Alien Enemies Act as providing the kind of power President Donald Trump is claiming now when they debated the legislation in Congress more than 225 years ago. An investigation into the Congressional record clearly shows that both the proponents and opponents of the Alien Enemies Act understood the legislation as providing broad powers to the president to remove hostile foreign nationals.
Congress debated the Alien Enemies Act from May through June of 1798 before President John Adams signed it into law on July 6 of that year. With the XYZ Affair — an attempted bribery of American diplomats by French officials — just a year prior, the United States found itself engaged in the Quasi-War with France. At the same time, revolutions in France and Haiti, at the time a French colony, were driving large numbers of French emigres into the U.S. from the east and the south. The early American republic’s state-controlled immigration system left the federal government without a mechanism to address problems presented by inflows of potentially hostile foreign actors.
Debate over the Alien Enemies Act was particularly fierce in the House of Representatives, where the legislation passed 46-40 after weeks of debate. Upon a reading of the legislation by Rep. Samuel Sewall of Massachusetts, the chairman of the House Committee on Ways and Means, opponents of the Alien Enemies Act seized on some of its vagaries.
Rep. Matthew Lyon of Vermont—who would later become the first person to be tried, convicted, and jailed for violating the Alien and Sedition Acts and then the only person to be elected to Congress while in jail—claimed the legislation was “too vague to authorize the exercise of so great a power as was here given,” particularly with respect to the discretion given to the president. Others, such as Rep. Goodloe Harper of South Carolina, expressed similar concerns.
Sewall, however, argued the breadth of the presidential power was necessary despite its “good deal of uncertainty.”
“The select committee did not see any way of remedying the evil without making the law too mild in its operation,” Sewall claimed.
Later, Sewall would explain that it’s not the legislation that actually affords the president this power. Rather, it’s the president’s preexisting “executive Power” vested in him by the American people and his role as Commander-in-Chief in Article II of the Constitution.
Even still, that does not mean Congress could not serve a constructive role: “In all countries there is a power lodged somewhere for taking measures of this kind. In this country, this power is not lodged wholly in the Executive; it is in Congress,” Sewall said. “Perhaps, if war was declared, the President might then, as Commander-in-Chief, exercise a military power over these people.”
Sewall does not mean, however, that a declaration of war is necessary to use the Alien Enemies Act, just as the president is not Commander-in-Chief only in times of war. “The intent of this bill is to give the president the power of judging what is proper to be done, and to limit his authority in the war proposed by this bill,” said Sewall. “The president would be able to determine this matter by proclamation.” While the legislation’s opponents saw the Congress granting the president unchecked authority, Sewall saw the legislation actually placing guardrails on how the president might respond to hostile foreign actors.
Rep. Harrison Gray Otis of Massachusetts also advocated for a broad reading of the president’s powers under the Alien Enemies Act. It is nonsensical to argue Congress must declare war for the president to use the Alien Enemies Act because “the President would have the power, the moment war was declared, to apprehend the whole of these people as enemies, and make them prisoners of war.”
“And in the case of a predatory incursion, made on this country there might be as much reason for securing some of them as in the case of actual war or invasion,” Otis added. “An amelioration or modification of those powers which the President already possesses, as Commander-in-Chief, and which the martial law would prove more rigorous than those proposed by this new regulation.”
Rep. William Gordon of New Hampshire’s advocacy of the bill also reveals that the president retains these powers, endorsed by Congress through the Alien Enemies Act, without a formal declaration of war. “Is it not absurd to say, at a time when the United States are about to enter upon a war, and the country is filled with the natives of the enemy-country, that we do not possess power to send them out of the country?” he asked rhetorically. “That Congress may make war, but cannot do a less hostile act?”
Later remarks from Gordon are particularly prescient: “For suppose, at some future time, there shall be as many aliens of various nations as citizens in the United States… might not such a band of men, if suffered to remain, prove the destruction of the country? They certainly might, and no nation would act so unwisely as to give them an opportunity of becoming so.”
