ARI SHAPIRO, HOST:
President Trump has recently invoked an 18th century law, the Alien Enemies Act, to justify rapid deportations. There's now a legal battle over whether they can continue. But where did this law come from, and why is it still on the books? Those are perfect questions for Rund Abdelfatah and Ramtin Arablouei, co-hosts of NPR's Throughline.
RAMTIN ARABLOUEI, BYLINE: The Alien Enemies Act was drafted in 1798, more than a decade after the end of the Revolutionary War. The country was deeply polarized.
DANIEL TICHENOR: What was happening in 1798 was that there was lots of naval confrontation between the U.S. and France.
ARABLOUEI: This is Daniel Tichenor, a professor of political science at the University of Oregon.
TICHENOR: There was a sense that we were, you know, facing an impending war with France.
ARABLOUEI: And the Federalist Party, led by President John Adams and with a majority in Congress, was especially concerned.
TICHENOR: So federalists in Washington were particularly unnerved by all of this. They felt that we needed to ready the country for a possible war with France and were in no mood to put up with any kind of disloyal speech. So that's where the Alien and Sedition Acts of 1798 came out.
RUND ABDELFATAH, BYLINE: The Alien and Sedition Acts were made up of four laws. The most famous and controversial one was the Sedition Act. It made it illegal to, quote, "print, utter or publish any false, scandalous and malicious writings" about the U.S. government. But another one of the four Sedition Acts slid more under the radar.
ABDELFATAH: The Alien Enemies Act.
TICHENOR: (Reading) Whenever there is a declared war between the United States and any foreign nation or government...
ARABLOUEI: The Act has a few requirements. First of all, it's clearly not supposed to be used in peacetime. It says there has to be a declared war between the United States and a foreign nation or government. Second part - it can only be used against citizens of the foreign country or government that's at war with the U.S. And finally, those people have to be 14 years or older, and they can't be U.S. citizens.
TICHENOR: (Reading) The president is authorized at any such event by his proclamation thereof or any...
ARABLOUEI: If all those criteria are met, the president is allowed to apprehend and deport noncitizens.
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ABDELFATAH: So the declared war seems kind of...
TICHENOR: Pretty cut and dry.
ABDELFATAH: Black or white. Yeah, yeah.
TICHENOR: Yeah. That one's - that part's easy.
ABDELFATAH: Yeah. But the active invasion part seems like it could be open to interpretation.
TICHENOR: Correct. So the key part of that is the notion that a foreign nation is in the active attempt or engaged in a clear invasion of U.S. territory. And this part kind of dovetails with Article 2 of the Constitution, which says that presidents have the power to repel a foreign invasion. So even if you don't have a - at that point, you might not have a declared war, but to keep us safe, you need that kind of decisive, independent action from somebody in government.
ABDELFATAH: Given the context, the French and the British naval, you know, wars that are happening, who are they thinking of when they're coming up with these, you know, restrictions?
TICHENOR: So they're particularly worried about the French, but also, at the time, the Federalist Party was particularly hot and bothered about French and Irish immigrants, who they worried were disloyal. They knew they were voting in larger numbers or kind of leaning towards Jefferson and the Democratic Republicans.
ARABLOUEI: The Democratic Republicans were the opposition party, led by Thomas Jefferson.
TICHENOR: And so that was the group that they had in mind. But I'll just add really quickly, John Adams never invoked it 'cause in his interpretation, we were never - obviously there was never a declared war with France. Moreover, he did not see an active invasion taking place, so he never used it.
ARABLOUEI: What was the kind of immediate response from the public and also other politicians?
TICHENOR: The Alien and Sedition Acts were incredibly unpopular, and a lot of it was about, you know, protecting the Bill of Rights and not having that easily violated by, you know, a tyrannical regime. And so that's how the Republicans and Jefferson framed it, as - this is, you know, a fundamental threat to the basic liberties of people in this country.
ARABLOUEI: So since this was, like, a big issue, why, after 1800, was this not, like, completely done away with and repealed?
TICHENOR: I think because it wasn't really used. So the Sedition Act was used. It was deeply unpopular. Lots of attention, lots of squabbling in - you know, in newspaper columns and speeches in - on the floor of Congress about the Sedition Act, about whether it was just or not. Because Adams never invoked the Alien Enemies Act, it really didn't get a lot of attention. And so my hunch is that it was kind of swept under the rug in some ways.
ARABLOUEI: Three future presidents would invoke the Alien Enemies Act, first against British citizens in the War of 1812, then against Germans during World War I. Finally, in World War II, it paved the way for Japanese Americans to be forcibly removed to relocation centers.
TICHENOR: That is what led to the internment of both Japanese American citizens and Japanese noncitizens. The Alien Enemies Act, in some senses, was kind of, you know, the first step in this regard.
ARABLOUEI: That was the last time the law was used - until now.
SHAPIRO: That was Throughline's Ramtin Arablouei and Rund Abdelfatah talking with Daniel Tichenor about the origins of the Alien Enemies Act. For the full story, listen to Throughline wherever you get your podcasts.
(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.
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