Why the Alien Enemies Act Is a Constitutional Dumpster Fire Waiting to Explode

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The resurrection of the goddamn Alien Enemies Act from its 200-year slumber represents one of the most alarming threats to constitutional governance in recent American history. This archaic legislation, drafted during an era when the ink was barely dry on the Constitution, stands as a monument to everything the modern legal system has spent generations trying to correct. Let's be brutally honest here - dusting off this legal dinosaur isn't just bad policy; it's a frontal assault on the very foundations of constitutional law that would make the Founding Fathers lose their collective shit if they could see it happening.

The cold, hard truth is that any attempt to wield this legislative fossil in the modern era faces insurmountable legal obstacles that would make even the most creative legal minds break out in a cold sweat. The constitutional violations are so numerous and profound that they practically scream from every page of this antiquated text. This isn't just my opinion – the legal landscape has evolved so dramatically since this law's conception that deploying it now would be like trying to perform brain surgery with stone tools.

The Rotting Legal Foundation: What the Hell Is This Thing Anyway?

The Alien Enemies Act (50 U.S.C. § 21) emerged during the Adams administration as part of the infamous Alien and Sedition Acts of 1798 – yeah, those wonderful laws that are universally regarded as some of the most repressive legislation in American history. While its sibling laws mercifully expired or were repealed, this particular monstrosity somehow survived, lurking in the shadows of the United States Code like a dormant virus waiting for the right conditions to reemerge.

The text itself is a masterclass in governmental overreach:

"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, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies."

Let's parse this bullshit, shall we? The law permits the federal government to detain, restrain, and remove non-citizens from a country with which the United States is at war. Seems straightforward on its face, right? Except it's not 1798 anymore, and we've since developed this pesky thing called "constitutional jurisprudence" that throws a massive wrench into the machinery of this antiquated legal framework.

The fundamental problem with the Alien Enemies Act is that it was conceived in an era before the robust development of due process rights, equal protection principles, and the complex web of international law that now governs the treatment of foreign nationals. The act basically says, "Hey, if we're at war with your country, we can lock you up and kick you out without much fuss." In the modern legal context, that's not just problematic – it's a constitutional nightmare.

The "Declared War" Bullshit: A Convenient Fiction

The first massive obstacle to implementing the Alien Enemies Act is the triggering mechanism: a "declared war." Now, here's where proponents of using this dusty relic try to get clever. They argue that the statute provides two pathways for activation: either a formally declared war OR an "invasion or predatory incursion" against U.S. territory.

This is where I call absolute horseshit.

The United States hasn't formally declared war since World War II. Instead, we've engaged in military conflicts through Congressional Authorizations for Use of Military Force (AUMFs), UN Security Council Resolutions, and Presidential actions under the War Powers Act. The legal architects trying to revive this zombie legislation want to argue that these modern equivalents satisfy the "declared war" requirement. But let's be real – they don't.

When the Alien Enemies Act was written, "declared war" had a specific meaning: a formal declaration by Congress under Article I, Section 8 of the Constitution. The drafters weren't envisioning the complex, often ambiguous military engagements of the modern era. They meant actual, no-shit, officially declared warfare between nation-states.

As constitutional scholar David Cole aptly points out, "The Constitution gives Congress, not the president, the power to 'declare war.' Yet Congress has not formally declared war since World War II. In the modern era, presidents have initiated military action without such declarations, often with congressional authorization short of a declaration of war, but sometimes without even that" (Cole, 2017).

Trying to stretch the concept of "declared war" to cover contemporary military actions is like trying to cram your adult ass into your childhood jeans – it just doesn't fucking fit no matter how hard you try.

And as for the "invasion or predatory incursion" clause? Good luck with that legal theory. The historical context makes it abundantly clear that this language referred to actual military invasions by foreign powers – like, you know, armies crossing borders with guns and tanks and shit. Attempting to redefine migration patterns or cross-border criminal activity as an "invasion" would be laughed out of any serious courtroom.

Due Process: It's Kind of a Big Deal Now

Even if someone could somehow navigate around the "declared war" requirement, the Alien Enemies Act faces an even more formidable opponent: the Due Process Clause of the Fifth Amendment. Over the 200+ years since this law was drafted, the Supreme Court has developed a rich body of jurisprudence affirming that non-citizens present in the United States are entitled to due process protections.

The landmark case of Zadvydas v. Davis (2001) established that "the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." This isn't some fringe legal theory – it's settled constitutional law affirmed by the highest court in the land.

The Alien Enemies Act, with its sweeping authorization to "apprehend, restrain, secure, and remove" people based solely on their nationality, takes a giant dump all over these due process protections. The law provides virtually no procedural safeguards, no individualized hearings, no opportunity to challenge the basis for detention – just a blanket authorization to round people up based on where they were born.

Try running that by the modern Supreme Court and see how far you get. I'll save you the suspense: not very fucking far.

Legal scholar Jennifer Chacón puts it bluntly: "The notion that the government can detain and deport individuals solely on the basis of their national origin, without any individualized assessment of dangerousness or threat, is fundamentally at odds with modern understandings of due process" (Chacón, 2019). This isn't a close call or a gray area – it's a direct collision with established constitutional principles.

Equal Protection: Because We're Not Supposed to Discriminate Anymore

If the due process problems weren't enough to sink this legal Titanic, the equal protection issues would finish the job. While the Fifth Amendment doesn't explicitly contain an Equal Protection Clause like the Fourteenth Amendment, the Supreme Court has consistently held that the Fifth Amendment's Due Process Clause incorporates equal protection principles that apply to federal government actions.

The Alien Enemies Act authorizes the government to target people based solely on their nationality – a classification that would trigger heightened scrutiny under modern equal protection analysis. The law doesn't care if you've lived in the United States for decades, if you have deep community ties, or if you've never done a damn thing to harm national security. All that matters is that you were born in a particular country. That's textbook national origin discrimination.

In the landmark case of Graham v. Richardson (1971), the Supreme Court established that classifications based on alienage and nationality are "inherently suspect and subject to close judicial scrutiny." More recently, in Trump v. Hawaii (2018), even while upholding a controversial travel ban, the Court emphasized that policies allegedly motivated by animus toward particular national origins must face searching judicial review.

Imagine trying to defend a mass detention program targeting, say, Chinese nationals, without any individualized assessment of threat or dangerousness, solely because of escalating tensions with China. Under contemporary equal protection doctrine, such a program would be dead on arrival in any federal court.

International Law: It Exists, and We Can't Just Ignore It

Beyond domestic constitutional hurdles, implementing the Alien Enemies Act would violate a host of international legal obligations that the United States has undertaken since the law's creation. These weren't concerns in 1798, but they sure as hell are now.

The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention Against Torture, and the Refugee Convention all contain provisions that would be flagrantly violated by a mass detention and deportation program based solely on nationality. While international law doesn't automatically override domestic statutes, courts increasingly look to international legal norms when interpreting constitutional provisions.

Even during wartime, the Fourth Geneva Convention specifically protects civilians who find themselves in the territory of a conflict party, prohibiting "collective penalties" and "all measures of intimidation or of terrorism." A program of mass detention based solely on national origin would almost certainly violate these principles.

As international law expert Harold Hongju Koh notes, "The international legal landscape has transformed dramatically since the 18th century. Contemporary human rights norms prohibit the kind of nationality-based detention scheme contemplated by the Alien Enemies Act" (Koh, 2018). Attempting to implement this archaic law wouldn't just create a domestic legal crisis – it would position the United States as a rogue actor on the international stage.

Post-9/11 Precedents: Even in Crisis, There Are Limits

Proponents of resurrecting the Alien Enemies Act might point to post-9/11 security measures as evidence that courts defer to executive authority during national security crises. But even those controversial programs stopped well short of what the act would authorize.

In the aftermath of the September 11 attacks, the government implemented various programs targeting non-citizens from certain countries, including the National Security Entry-Exit Registration System (NSEERS). These programs faced intense legal scrutiny, and many aspects were eventually abandoned as legally problematic. And even these controversial measures required some individualized process and specific security rationales – they weren't blank checks for detention based solely on nationality.

The Supreme Court's decisions in cases like Hamdi v. Rumsfeld (2004) and Boumediene v. Bush (2008) made clear that even in the context of an authorized military conflict, the government cannot dispense with fundamental due process protections. As Justice O'Connor famously wrote in Hamdi, "A state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."

If that principle applies to actual enemy combatants captured on foreign battlefields, it certainly applies to peaceful residents whose only "crime" is having been born in a particular country.

The Political Reality: An Implementation Nightmare

Even setting aside the constitutional and international legal obstacles, the practical implementation of the Alien Enemies Act would be a colossal clusterfuck of epic proportions. Imagine the scenario: The President issues a proclamation targeting nationals of a specific country, and suddenly federal agencies are tasked with identifying, apprehending, and detaining potentially thousands or hundreds of thousands of people.

Where would they be held? Under what conditions? For how long? With what procedural protections? The act provides virtually no guidance on these critical questions.

The chaos and human suffering that would result from such a program would be immense. Families would be separated, communities disrupted, and legitimate asylum seekers put at risk. The humanitarian crisis would be compounded by the inevitable errors and abuses that occur in any mass detention program.

And all of this would be happening while federal courts issued a barrage of injunctions, stays, and orders questioning the legal basis for the entire operation. The result would be not just a legal mess but an administrative and humanitarian disaster that would disgrace the country on the world stage.

The Historical Stain: We've Been Here Before, and It Sucked

If there's one thing American history teaches us, it's that emergency powers targeting specific national or ethnic groups tend to age like milk left out in the Arizona summer. The internment of Japanese Americans during World War II, authorized by Executive Order 9066, stands as one of the most shameful episodes in American legal history – an action that the government eventually apologized for and paid reparations to address.

That program, which at least had the fig leaf of a formally declared war to hide behind, is now universally recognized as a profound moral and constitutional failure. The Supreme Court's decision in Korematsu v. United States (1944), which infamously upheld the internment program, has been effectively overruled and is now regarded as belonging to the anti-canon of constitutional law – decisions so wrongly decided that they serve primarily as negative examples.

In Trump v. Hawaii (2018), Chief Justice Roberts explicitly stated that "Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—'has no place in law under the Constitution.'" If the Japanese internment program is now recognized as constitutionally indefensible, a modern implementation of the Alien Enemies Act would fare no better.

Conclusion: A Legal Fantasy That Should Stay Buried

The Alien Enemies Act is a relic of a different constitutional era, drafted before the development of modern due process doctrine, equal protection principles, and international human rights law. Its sweeping authorization of nationality-based detention runs counter to foundational principles of contemporary constitutional law.

Any attempt to resurrect this legal zombie would immediately face insurmountable legal obstacles. Federal courts would almost certainly issue nationwide injunctions within hours of implementation, and the ensuing legal battle would likely end with the Supreme Court definitively consigning the act to the dustbin of constitutional history where it belongs.

The fantasy that this 225-year-old law provides a viable legal pathway for mass detention of non-citizens is just that – a fantasy, divorced from legal reality and the centuries of constitutional development that separate us from the law's creation.

The Alien Enemies Act should remain what it has largely been for the past century: a historical curiosity, a cautionary tale about emergency powers, and a reminder of how far our constitutional understanding has evolved. Attempting to breathe new life into this constitutional corpse wouldn't just be legally futile – it would be a profound betrayal of the progress we've made in protecting individual rights against governmental overreach.

In the words of Justice Kennedy, "The Constitution protects persons, not groups." The Alien Enemies Act, with its exclusive focus on national origin rather than individual conduct, stands in direct opposition to this foundational principle. It's time to let this legal dinosaur remain extinct.

Citations

1. Cole, D. (2017). "Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism." Stanford University Press.

2. Chacón, J. M. (2019). "Immigration and the Bully Pulpit." Harvard Law Review Forum, 130(7), 243-268.

3. Koh, H. H. (2018). "Trump v. Hawaii: Korematsu's Ghost and National Security Masquerades." SSRN Electronic Journal.