Trump is relying on a 1798 law with a bad history.
Many U.S. citizens were prosecuted under the Sedition Act. They were mainly publishers in the Jeffersonian party that opposed Adams’s Federalist majority party. (I’ve written elsewhere in this context about Adams, and about Jefferson’s own arbitrary abuses once he was in office.) In that sense, the act served as intended: a government weapon for punishing dissidents and political opponents. The war with France that supposedly justified such draconian measures was only barely more real than the war that the Trump administration is now claiming exists: on the horizon when the act was passed, it never materialized and is known to students of U.S. history as the Quasi-War. The government’s warlike mood was nevertheless intense, and acts of Congress passed amid war fever gave the president a lot of power, which he used, to stifle legitimate dissent.
Unlike the Alien Enemies Act, the Sedition Act was set to expire, and it did, in 1801. Over the years, in further acts, the legislative branch has pointed to national emergencies involving foreign infiltration and domestic sedition to allow the executive branch to carry out detentions without charge (Lincoln’s 1863 suspension of habeas corpus) and suppressions of the free speech and associations of U.S. citizens, often dovetailed, as today, with immigration law: the Espionage Act (1917), a new Sedition Act (1918), the Smith Act (1940), and the Internal Security Act (1950).
The Alien Enemies Act, having stayed on the books, was really put into practice for the first time by President Madison, during the War of 1812, when British nationals in the U.S. were required to register with local federal marshals. The next time was 1917-18, with U.S. entry into WWI, when President Wilson required all German nationals to register and interned thousands in camps for the duration of the war (J. Edgar Hoover was involved in that). In WWII came the first significant internment of people more broadly defined as having “enemy ancestry” under the Alien Enemies Act, beefed up by other statutes. FDR’s Justice Department interned about 11,000 people defined as having German ancestry—some, especially spouses and children, who “voluntarily” joined the internees, were U.S. citizens—about 3000 Italians and Italian Americans, and about 120,000 people of Japanese descent, of whom the majority were U.S. citizens.
That sketch shows how, throughout our national history, the detention and expulsion of immigrants considered enemies, in the absence of due process of law rationalized by national emergency, has dovetailed with violation of U.S. citizens’ individual rights of free speech, free press, free association, free assembly to petition for redress, and overall individual liberty. The Adams administration and its Federalist majority in Congress intended the Alien and Sedition Acts to work as a comprehensive package. From Adams’s prosecutions of publishers to the criminalizing of ideas under the Smith Act to the internment of Japanese Americans, the drive to detain and expel aliens en masse has always been inextricably bound up in violating the rights of citizens. Today that mentality is actively fostering national emergencies—wars and rumors of wars—to conjure the rationalization.
