Already a judge has temporarily blocked it usage. What is most interesting is how the media is referring to it as a wartime act, yet historically speaking it was not passed or originally implemented originally during war time.
The controversial part of the 1798 law in question reads, “That whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President of the United States shall make public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies.” There was no controversy in the past when this law was used, at least about the president’s authority, as America was at war.
The debated part of the law this time is, “or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States.”
The court will have to decide if that line gives the president authority when we are not at war. When trying to decide, the court often tries to understand the intent of the law at its passage. With that in mind it is worth understanding the context of the passage of the Alien and Sedition Acts.
When the Acts were passed the world was at war with France. During the French Revolution the people of France rose up and beheaded the king and queen as well as most of the nobility sending them to war with the nations of Europe. While Secretary of State Thomas Jefferson supported an alliance with France, President Washington decided on a course of neutrality as the best way forward for our young nation. Yet in an effort to secure some assistance, the French Revolutionary government sent over a diplomat named Citizen Edmond-Charles Genet.
Genet arrived in Charleston, SC where Jefferson’s Republicans held power and so as Genet was wined and dined by supporters he began issuing privateering commissions, basically recruiting Americans to act as pirates in attacking British ships. When Washington told him to cease such activity, Genet ignored the president, flaunting his disobedience, believing the people were on his side. Genet had been hanging in Republicans circles for too long not realizing the respect Washington had. Upsetting Washington’s administration, Genet was recalled to France to answer for his insubordination.
Realizing his head would probably soon be in a basket, Washington allowed him to stay, but damage had been done.
During Adam’s administration the problems with France continued as France and England both attempted to stop the U.S. from trading with the other nation.
Alexander Hamilton and his Federalists wanted to continue our trade relations with England and pushed the president to go to war with France. Wanting to continue a peaceful relationship with France, Adams defied Hamilton and sent over a crack team of diplomats to work on building a relationship with France. The plan backfired.
Not only were our diplomates unable to get an audience with French leaders, but they also required a bribe and several concessions from the U.S. before any talks could commence. In what became known as the XYZ Affair, Federalists used the insult as justification for a Quasi-War with France where American and French ships clashed in the Caribbean.
The Federalists used the anti- French sediment to attack their Republican rivals and as a way to hurt the French and Republicans they passed through congress the Alien and Sedition Acts. Being that most immigrants tended to support the Republicans the Naturalization Act extended the length before applying for citizenship from five to 14 years. The Alien Friends act allowed the president to deport any alien he deemed dangerous. The Alien Enemies act we already covered above. Finally, the Sedition Act criminalized “false, scandalous, and malicious” writings against the government, mainly targeting Republican newspapers. I do not have room to discus all the consequences and ramifications of these acts, suffice to say there were some real debates as to the constitutionality of these laws, especially the Sedition Act.
In the end Jefferson became president, three of the acts were repealed, but the Alien Enemies Act was deemed important enough to keep. Having the ability to deport non-citizens harming the country was supported by both parties. Over the years the law has been put into action, most notably during WW I and II. Yet if we try to understand the context of when the law was passed and implanted it is important to understand that congress had not declared war.
So, while it may be described as a war powers act today, it was not originally seen that way.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He may be reached at HistoricallySpeaking1776@gmail.com.
