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- [00:00]
Dana Farber
This message comes from NPR sponsor Dana Farber Cancer Institute. Dana Farber Scientists laid the foundation for CDK4.6 inhibitors, new drugs that are increasing the survival rate for many advanced breast cancers. Learn more@danafarber.org Everywhere this message comes from Instacart. If you're a parent or share a fridge with someone, Instacart can make grocery shopping so much easier. With family carts, you can share a cart with your partner and each add the items you want. That way you'll both remember everything you need and will never have to eat milkless cereal again. Download the Instacart app and get delivery in as fast as 30 minutes. Plus enjoy zero dollar delivery fees on your first three orders. Service fees apply for three orders in 14 days. Excludes restaurants.
- [00:48]
Ramtin Arablouei
At 5:45pm Eastern Time on Saturday, March 15, 2025, a plane took off from Harlingen, Texas. As that plane flew south, turning towards Honduras, news alerts went off in the United States.
- [01:04]
Daniel Tichner
President Trump invoked a wartime law that gives him sweeping deportation powers. It's called the Alien enemies Act of 1798.
- [01:13]
Rund Abdelfattah
It gives presidents power to order the rapid detention and deportation of noncitizens older than 14.
- [01:20]
Daniel Tichner
It is clear the US is not in a war right now. But in his order, Trump described Venezuela's trend Aragua prison gang as a force invading the U.S. many view this move as an attempt by the Trump administration to accelerate deportations.
- [01:34]
Dana Farber
I think an old law is a.
- [01:36]
Daniel Tichner
Virtue, not a vice. The ACLU sued to stop these deportations and a federal judge agreed to temporarily block them. Despite this, a plane landed in El Salvador carrying hundreds of deportees from the United States.
- [01:50]
Rund Abdelfattah
It's unclear if the deportations violated a judicial order. President Trump asked the Supreme Court to intervene. He wanted the injunction, which a federal judge put on his ability to use the Alien Enemies act to be lifted. The Supreme Court ended up issuing a narrow procedural ruling lifting the order, saying the migrants should have filed their cases in the states where the migrants were being detained and not in Washington, D.C. but the justices avoided answering the question of whether or not Trump's use of the Alien Enemies act was constitutional.
- [02:25]
Ramtin Arablouei
And that's the law at the heart of this story. The Alien Enemies act allows presidents to detain or deport citizens of foreign adversaries to the United States, but only if a declared war or invasion of the US has taken place. The Trump administration, including Tom Homan, the president's border czar, is arguing that the 137 Venezuelans it deported using the Alien Enemies act were in A sense invading the United States as alleged members of the gang Trend Aragua, or tda.
- [02:59]
Daniel Tichner
TDA is the enemy in this country. We know tda, based on a lot of evidence, are part of the Maduro, Maduro regime through the military and law enforcement. They've infiltrated them. And look, they've, they've invaded this country to unsettle this country through, whether it's through fentanyl killing thousands of Americans or.
- [03:17]
Rund Abdelfattah
Through the vinous are perpetrating our cities.
- [03:19]
Daniel Tichner
President did the right thing. I stand by it.
- [03:21]
Rund Abdelfattah
But at least 27 of the men the Trump administration deported without a trial did not have deportation orders against them. An ICE official has conceded that, quote, many did not have criminal records. And court filings showing the criteria Department of Homeland Security officers used to identify the alleged gang members indicate that they relied heavily on tattoos, which investigative reporters who have studied the TDA gang say are, quote, unreliable and, quote, highly subjective as evidence.
- [03:54]
Ramtin Arablouei
Critics of the Trump administration's actions are calling its use of the Alien Enemies Act a massive overreach, an abuse of executive power. But Stephen Miller, the White House deputy chief of staff, told reporters in March that the President is using the law exactly as the founding fathers intended.
- [04:13]
Daniel Tichner
The founding generation that wrote this law very clearly, these are the same people who wrote the Constitution very clearly wanted to ensure the President had the broadest range of authority to remove from the nation non citizens who are part of an alien enemy force. And that's the authority the President has. And in the coming days, you will see the full suite of presidential authorities used to extirpate the this gang, this terrorist organization from our soil.
- [04:44]
Rund Abdelfattah
All of this left a lot of people wondering where did the law at the center of all of this come from? Is what's happening now in line with how US Presidents have used the Alien Enemies act in the past.
- [04:57]
Ramtin Arablouei
So with that in mind, we wanted to talk to someone who has read this law and who has studied the role it's played in American history.
- [05:04]
Daniel Tichner
What's old is new again.
- [05:06]
Ramtin Arablouei
Daniel Tichner is a professor at the University of Oregon.
- [05:11]
Daniel Tichner
I teach political science and I'm also the co director of the Wayne Moore center for Law and Politics.
- [05:17]
Ramtin Arablouei
He studies the history of immigration in the US and recently wrote an article breaking down the Alien Enemies act for the Conversation, an independent news site written by academic experts.
- [05:28]
Daniel Tichner
I certainly did not expect to be talking about, you know, this obscure 18th century law. It has always been there for the taking. If a president wanted to try to use it as a way to exercise really broad unrestrained powers in terms of the arrest, regulation, detention and removal of non citizens.
- [05:54]
Rund Abdelfattah
I'm Rend Abdelfattah.
- [05:55]
Ramtin Arablouei
And I'm Ramtin Arablouei.
- [05:58]
Rund Abdelfattah
On today's episode of Throughline from npr, where the Alien Enemies act came from, how American Presidents have used it before, and what that tells us about what's to come.
- [06:13]
Daniel Tichner
This is Paul from Baltimore, Maryland 21218. We're home to the James Webb Space Telescope. We're not the center of the universe, but you can see it from here. You're listening to Throughline from npr.
- [06:31]
Dana Farber
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- [06:57]
Daniel Tichner
This message comes from Schwab. At Schwab, how you invest is your choice, not theirs. That's why when it comes to managing your wealth, Schwab gives you more choices. You can invest and trade on your own, plus get advice and more comprehensive wealth solutions to help meet your unique needs. With award winning service, low costs and transparent advice, you can manage your wealth your way at Schwab. Visit schwab.com to learn more. This message comes from Wise, the app for doing things and other currencies. With Wise, you can send, spend or receive money across borders, all at a fair exchange rate, no markups or hidden fees. Join millions of customers and visit wise.com Ts and Cs apply Part 1 Enemies.
- [07:46]
Rund Abdelfattah
The alien Enemies act is one of the United States oldest immigration laws, and for many Americans, the history of immigration in this country is personal. It's the story of how they or their ancestors came to the United States and what challenges awaited them. That's the case for Daniel Tichner, a professor of political science at the University of Oregon.
- [08:10]
Ramtin Arablouei
How did you get into studying immigration?
- [08:12]
Daniel Tichner
Part of the answer is that I'm the grandson of immigrants, and so I think I've always been fascinated by the topic. So on the one side of the family are German Lutherans, on the other side are Hungarian Jews. Amazingly, my sister and I have had relatively little therapy despite that. So I grew up hearing lots of stories of the struggles that members of my family had encountering the paper walls of the State Department during the Holocaust, trying to get Family desperately out of Hungary on the one side. On the other side, you know, my grandparents were German immigrants, came from working class families and, you know, they came here and tried to start over and, you know, do well economically. So I think that was always in my brain. I don't think I set out to study immigration, but that obviously was always there.
- [09:04]
Rund Abdelfattah
We called Daniel because he's a self proclaimed nerd on the history of U.S. immigration policy. And after President Trump issued his March 2025 executive order invoking the Alien Enemies act, we wanted someone to explain it to us, starting from the beginning.
- [09:21]
Ramtin Arablouei
If you could take us back to the 1790s, basically, and paint a picture of the kind of context, the social political context of that moment where the Alien Enemies act is passed.
- [09:33]
Daniel Tichner
So the social political context. If anyone's seen the musical Hamilton, they may have some sense of the context.
- [09:39]
Ramtin Arablouei
The Alien Enemies act was drafted in 1798, more than a decade after the end of the Revolutionary War. The. The country was deeply polarized. On one side were the Federalists, Alexander Hamilton's party, and the party of John Adams, who was the president at this time. They wanted a strong federal government and a close relationship with England. On the other side, Thomas Jefferson's Democratic Republican Party wanted the opposite power divided between states and a cozy alliance with the French, whose navy was busy waging a war with the English.
- [10:15]
Daniel Tichner
And what was happening in 1798 was that there was lots of naval confrontation between the US And France. There was a sense that we were, you know, facing an impending war with France. So Federalists in Washington were, you know, particularly unnerved by all of this. They felt that we needed to ready the country for a possible war with France. And we're 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.
- [10:47]
Rund Abdelfattah
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 US Government. Basically, the Federalists, who had a majority in Congress, wanted to prevent the Democratic Republicans from undermining the government as it prepared for a possible war with France. And during the three years the law was in effect, they used it, making 25 arrests, 15 indictments and 10 convictions. But another one of the four sedition acts slid more under the radar.
- [11:29]
Ramtin Arablouei
The Alien Enemies Act.
- [11:31]
Daniel Tichner
Whenever there is a declared war between the United States and any foreign nation.
- [11:35]
Ramtin Arablouei
Or government, 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.
- [11:48]
Daniel Tichner
Second part, any invasion or predatory incursion.
- [11:51]
Ramtin Arablouei
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.
- [12:04]
Daniel Tichner
The president is authorized in any such event by his proclamation thereof.
- [12:09]
Ramtin Arablouei
If all those criteria are met, the President is allowed to apprehend and deport non Citizens.
- [12:21]
Daniel Tichner
The Alien Enemies act in particular gave Presidents broad authority to apprehend, detain and remove noncitizens who were aged 14 years or older, who were from a hostile nation or government when that country was in a declared war with the US or was in an active invasion of US Territory.
- [12:43]
Rund Abdelfattah
Active invasion. So the declared war seems kind of.
- [12:45]
Daniel Tichner
Pretty cut and dry.
- [12:46]
Rund Abdelfattah
Black or white?
- [12:46]
Daniel Tichner
Yeah, yeah, yeah, yeah, that one's. That part's easy.
- [12:48]
Rund Abdelfattah
Yeah. But the active invasion part seems like it could be open to interpretation.
- [12:52]
Daniel Tichner
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, 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. That's when a president under this legislation has this power over noncitizens who are 14 years or older.
- [13:33]
Rund Abdelfattah
Who are they thinking of? You know, given the context, you know, the French and the British naval wars that are happening, who are they thinking of when they're coming up with these restrictions?
- [13:45]
Daniel Tichner
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. And so that was the group that they had in mind. But I'll just add really quickly. John Adams never invoked it because 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.
- [14:23]
Ramtin Arablouei
Was there pushback immediately? When this is passed in the sense that, did anyone say this is like too much power for the executive branch, what was the kind of immediate response from the public and also other politicians.
- [14:36]
Daniel Tichner
Yeah, there was definitely a populist backlash led by Jefferson and Madison. But you know, overall the kind of a sense that the Alien Acts were incredibly unpopular, they were politically disastrous for John Adams, even though he was lukewarm about them himself. And a lot of it was about protecting the Bill of Rights and not having that easily violated by a tyrannical regime. And so that's how the Republicans and Jefferson framed it as this is a fundamental threat to the basic liberties of people in this country. And by the way, he won pretty decisively in 1800, so that kind of shored up that critique.
- [15:20]
Ramtin Arablouei
So since this was like a big issue that created popular backlash and potentially helped Jefferson win, why wasn't it repealed? Why after 1800 was this not like completely done away with and repealed?
- [15:34]
Daniel Tichner
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 newspaper columns and speeches on the floor, 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, some ways.
- [16:02]
Rund Abdelfattah
Let's fast forward. When does it actually get used for the first time or invoked by a US President for the first time?
- [16:09]
Daniel Tichner
So there's irony in this because it's Jefferson's key partner in all of, in creating a new party and a new government. It was under James Madison during the War of 1812.
- [16:21]
Rund Abdelfattah
By 1812, naval spats between the British and the French had escalated to an all out war. The United States tried to stay neutral while Napoleon and the British traded shots on the Atlantic. But when the British started intercepting American merchant ships and pressing sailors into service, President James Madison felt like his hand was forced.
- [16:43]
Daniel Tichner
So it's a declared war and of course the hostilities are with Britain. And it's a pretty mild use of the Alien Enemies act because what Madison says is he wants all British nationals who are living in the country to report what their age is. Remember, 14 years is the key cutoff in the law. Where they're living, how long they've been in residence and whether they plan to naturalize. And we don't know, we don't have records to know exactly how many adhered to this, whether there were kind of, you know, draconian uses of it. But from what we can tell from the historical record, you know, it was declared invoked and you know, it didn't seem to raise a lot of eyebrows.
- [17:28]
Ramtin Arablouei
And what's also interesting about that is there must have been a lot of British nationals in the US at that time. So this seems like a monumental task to kind of have an accounting of all those people. Was it like for intimidation or did they actually seem to think that they could do it?
- [17:43]
Daniel Tichner
Well, he invoked it very early, so maybe it was meant to be something that was like, you know, as we're preparing for this, let's also have this in our tool belt.
- [17:52]
Rund Abdelfattah
I see.
- [17:53]
Ramtin Arablouei
So The War of 1812 comes and goes. You know, many people know the story. The British burned down the White House, they invade dc. It's this big event. The US passes through that. When is the next instance in which it's used?
- [18:06]
Daniel Tichner
The next time is World War I. It's another declared war, and this time it has more teeth than when we saw it unveiled.
- [18:14]
Ramtin Arablouei
In 1812, the US declared war on the German Empire. In April 1917, Woodrow Wilson was president. And not long after, Wilson invoked the Alien Enemies act right off the bat.
- [18:29]
Daniel Tichner
This time, Wilson wants to use it to force those who are foreign nationals from Germany, Bulgaria, Austria and other central powers to register, to regulate them, and in some cases to intern them. And so about a half million Germans living in the country were registered by the U.S. marshals Service. You might remember this is the time when Americans have this anti German hysteria and sauerkraut became liberty cabbage. It reminds you of freedom fries, right? Freedom fries. And had implication about what people could be employed for and so forth. And in addition, Germans living in the country had to surrender weapons, sometimes had to surrender radios if they were considered suspicious because that might be used for espionage purposes. They couldn't live near certain munitions factories and other things. And probably the most draconian part of this is around 6,000 German non citizens ended up being interned as enemy aliens during the war and they were sent to internment camps in Georgia and Utah.
- [19:43]
Rund Abdelfattah
Oh, wow. That word in the American context I, you know, associated with World War II. Japanese.
- [19:47]
Daniel Tichner
Exactly.
- [19:48]
Rund Abdelfattah
So I had no idea that this was happening during World War I. What does the enforcement of that actually look like on the ground during the war?
- [19:58]
Daniel Tichner
Well, there's both an official and quasi official version of this. The official part, as I mentioned, the U.S. marshals Service was called into action to do this. The Federal Bureau of Investigation was active in this. And so we had formal US Officials who were making sure this was happening. I think local and state police cooperated, but we also had in place at the time the American Protective League was a Group of about several hundred thousand Americans who had volunteered to help secure national security for the country in towns and cities across the U.S. and so folks would volunteer and they would eavesdrop on their German neighbors, maybe open up their mail. If they were in restaurants, they would sit near them. And so they played a role in this as well.
- [20:47]
Rund Abdelfattah
That sort of sounds like your neighbor is policing you. Right? That's an unsettling image, you know, in the American democratic context.
- [20:55]
Daniel Tichner
Very much so. And if you had a German accent, you particularly faced enormous scrutiny.
- [21:00]
Ramtin Arablouei
What about the families of those people? Was that affecting the spouses and the families as well?
- [21:06]
Daniel Tichner
I mean, there's two levels of this. One level is if you're among those 6,000 Germans and Austrians and others who are being shipped off to internment camps in Georgia and Utah, you're usually being shipped off from Midwestern and Northeastern cities. So your family members going a long ways and you have no contact with them. And so I think that had to be extraordinarily traumatic for those families. And then I think if you were facing the registration requirements and other forms of surveillance, I'm sure that put incredible stress on your family as well and made you very cautious and careful, especially in public, and I'm sure, you know, felt very repressive. But those, in contrast to the, to the 6,000 who were interned, at least you were an intact family dealing with it together.
- [21:59]
Ramtin Arablouei
I see a pattern here. Each time it seems to be invoked, it seems to get more intrusive and more intense. So this is World War I. So can you tell us about how the Alien Enemy act was invoked in World War II?
- [22:16]
Daniel Tichner
Sure. And just to underscore again, this is the third time it's invoked, it's another declared war.
- [22:21]
Ramtin Arablouei
Okay.
- [22:22]
Daniel Tichner
Franklin Roosevelt uses it to authorize a whole set of special regulations and restrictions on German, Italian and Japanese non citizens. And you're right that each time the ante goes up. So in some ways it replicates what Wilson did in World War I in terms of requires non citizens to register. You now have the FBI, which is playing a lead role in this. You have kind of a similar set of restrictions in terms of gun ownership, where one could live. If you were considered living near somewhere that kind of a sensitive national security area, they didn't want you there. You had to be fingerprinted. You had to tell me kids. You had so basically all kinds of surveillance and scrutiny. And in this war, 30,000 foreign nationals were interned under the Alien Enemies act, mostly Germans and Italians and some Japanese. And so the first thing you might ask is, wait, what about Japanese internment?
- [23:27]
Rund Abdelfattah
President Franklin Roosevelt invoked the Alien Enemies act immediately after Japan attacked Pearl harbor in December 1941. Within a few months, the Department of Justice had more than 2,000 Japanese nationals, non US citizens in custody, along with more than a thousand Germans and 264 Italians. In early 1942, Roosevelt signed Executive Order 9066, which gave the government the authority to forcibly remove and incarcerate US Citizens of Japanese descent into, quote, relocation centers. Historically, this process has been referred to as internment and the centers as quote, camps.
- [24:15]
Daniel Tichner
That is what led to the internment of both Japanese American citizens and Japanese non citizens. The Alien Enemies act in some senses was kind of, you know, the first step in this regard. And so in a sense then what you have here is, you know, two parallel things. One is this sweeping executive Japanese internment order issued from Roosevelt, and the second is this Alien Enemies act, which is following the law in terms of targeting foreign nationals from countries that we were in active conflict with.
- [24:57]
Rund Abdelfattah
Over the course of the war, nearly 120,000 U.S. citizens and residents of Japanese descent were forcibly relocated and incarcerated, many of them for three years or more. The majority were American citizens. Tichner says this instance raises an important point about the Alien Enemies Act. It can only be used to justify the detainment or deportation of people who aren't citizens. The that explains why Roosevelt needed an Executive Order.
- [25:27]
Daniel Tichner
At least one of the key reasons is that the Roosevelt administration did not just want to go after Japanese non citizens. They were also going after a huge population of Japanese American citizens, especially on the West Coast. Franklin Roosevelt was well informed by J. Edgar Hoover and other intelligence officers that there was no clear evidence that Japanese American citizens and non citizens of the west coast had actively engaged in any sabotage, or at least nothing that would that would justify the mass removal and internment of those populations.
- [26:06]
Rund Abdelfattah
General John DeWitt played a key role in this mass removal and incarceration.
- [26:12]
Daniel Tichner
But when he was confronted with the fact that there was not significant evidence of sabotage, he said, the mere absence of this does not undermine the notion that they pose a threat because they are forever connected to Japan. Because the racial strain, his exact words is the racial strain is undiluted no longer how long they have lived in this country. So it's clearly kind of national security laid upon pure racism.
- [26:45]
Ramtin Arablouei
And during this time, the immigration system is probably getting more and more complex, meaning there's different kinds of status you can have. When they invoke the Alien Enemies act, is it essentially wiping away anyone who doesn't have citizenship. If you had something like a permanent residence or a visa or something like that, was it covering basically anyone who was not an either naturalized or a birthright citizen during these times?
- [27:11]
Daniel Tichner
That is exactly correct, yes.
- [27:17]
Rund Abdelfattah
Coming up, the Alien Enemies act is invoked for the fourth time in American history and for the first time ever, it's used during peacetime.
- [27:35]
Daniel Tichner
You're listening to Throughline from npr. This is Taylor from Aromas, California. And I love this show. I find it to be eye opening, thought provoking and just done really, really well. Overall, thank you all so much.
- [27:50]
Dana Farber
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- [28:12]
Daniel Tichner
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- [28:31]
Dana Farber
Discover more@viking.com this message comes from NPR sponsor Dana Farber. Cancer Institute Breast cancer cells multiply faster because of CDK4.6 proteins. But what if blocking those proteins and stopping runaway cell division was possible? Dana Farber Scientists laid The foundation for CDK46 inhibitors, new drugs that are increasing the survival rate for many advanced breast cancers. Dana Farber's momentum of discovery keeps finding new ways to outmaneuver cancer. More@danafarber.org Everywhere Part 2 the Invasion When.
- [29:10]
Rund Abdelfattah
World War II ended in 1945, so did President Roosevelt's use of the Alien Enemies Act. And for the rest of the 20th century, the law faded into the background even as the United States fought in more wars without explicit declarations of war during that period.
- [29:29]
Ramtin Arablouei
Is it invoked again?
- [29:31]
Daniel Tichner
It is not.
- [29:32]
Ramtin Arablouei
Daniel Tichener is a professor of political science at the University of Oregon.
- [29:37]
Rund Abdelfattah
So after World War II, for the rest of the 20th century, it's not invoked again at all.
- [29:45]
Ramtin Arablouei
And why not?
- [29:47]
Daniel Tichner
Good question. I mean, it may be that this 18th century obscure law just faded into the woodwork as being something that was a relic of the past. Clearly, Congress and presidents had all kinds of control powers over noncitizens that they could use that didn't require invoking this legislation. So, for instance, Dwight eisenhower in the 1950s ordered a mass deportation of undocumented immigrants. And it was a huge dragnet raid that involved US Military, local police, state troopers and so forth. And tens of thousands of mostly Latine folks were rounded up, put on buses and driven across the Mexican border. It turned out that a number of those folks were Mexican American citizens. Some of them were legal permanent residents, they were not undocumented and so forth. And so some of them were legal braceros. But that's an example where, you know, he, you know, was able to basically push a button from the Oval Office and do it. And it did so without invoking this legislation. It was basically idea was these are individuals who were suspect of being unauthorized in U.S. territory. Therefore, in my enforcement powers as president, I am doing so.
- [31:17]
Rund Abdelfattah
To me, there's something really striking about the fact that there was so much both covert and explicit power that the executive had, that these intelligence agencies had, that these things could happen. And you didn't even need to invoke, as you say, like this dusty law from the 18th century. So it makes me wonder, why is it that now, you know, March 2025, we suddenly hear about the Alien Enemy act all of a sudden, after decades?
- [31:49]
Daniel Tichner
My sense is that as the Trump team was preparing to enter office, they viewed this law and its powers for presidents as a way to streamline the process of removing non citizens. And so basically, it's like deportation on rocket power. Noncitizens have at least some due process, you know, possibility of having a day in court if they face detention and removal. And what the Alien Enemies act does is it says the President, acting on behalf of keeping us safe, on behalf of national security, in repelling a foreign attack or an active warfare, has the capacity on our collective behalf to just remove you point blank, end of story.
- [32:41]
Ramtin Arablouei
And something sticking in my head here that you said earlier when we're talking about the actual Alien Enemies act and what it says, and this term that run brought up invasion, how is invasion being used right now to kind of justify the use of the Alien Enemies Act?
- [32:59]
Daniel Tichner
The argument that I think the administration is making is that Latin American governments are run by drug cartels and criminal organizations that are launching state sanctioned invasions of narcotics and unauthorized migrants into the country. The key here, because it goes back to the law, the law is saying either declared war or a foreign government launching an invasion. And so the key here, legally would be to say we are invoking. We as the Trump administration, are invoking this because these Latin American governments basically are under the thumb of these kind of criminal operations and cartels and so forth. And so that these narcotics and authorized migrants are in fact their invasion forces. And thus we have the right to Repel it. The key arbitrator in this is going to be the courts. The reality is that, as we've noted, it's. It's only been during. Only three times it's been used, has been during declared wars in the past. And so a lot of this comes down to whether the Court wants to intervene or not, whether the Supreme Court is going to basically decide that a president's identification of an invasion by a foreign nation is determinative or whether it's subject to judicial review. And you know, the Supreme Court's history on this has been uneven. When we talked only a moment ago about the Japanese internment case in Korematsu vs United States, which was decided in 1944, the court basically gave a President a blank check in terms of Japanese internment. And there's even another chilling decision than the Kiran decision that had to do with German saboteurs who FDR seized and had tried by a military tribunal. And in both cases, the court privately had lots of misgivings and lots of questions about the constitutionality, but ultimately decided that during this time of life or death of World War II, that the president had to be given that discretion. And at the time, one of the dissenting judges in that Japanese internment Korematsu case, Justice Robert Jackson, said, when you give a president this amount of power, unrestrained power, it's like leaving a loaded weapon on the desk of the Oval Office. Now fast Forward to post 9 11, George W. Bush's presidency. We have a lot of Guantanamo Bay detainees, and the Bush administration's initial plan was to have military tribunals. And the Supreme Court said no, that there were due process rights that had to be followed in that. So the Court in World War II said the President has extraordinarily broad prerogative powers that are unchecked to keep us safe in the name of national security. And then in the post 911 period, the Supreme Court actually said, wait, there are certain fundamental due process and constitutional protections that must be maintained, even when you claim it's on behalf of national security. So the question in this situation is whether this invocation of the Alien Enemies act will have a court response akin to World War II or one, akin to what the court did post 9 11.
- [36:44]
Ramtin Arablouei
And so just to be clear, the question that they have to answer is, can the President just decide what an invasion is and what isn't an invasion? And if they say yes, then will any of this matter? I need this historical context.
- [37:00]
Daniel Tichner
Yeah. I mean, if they say yes, then there's no restraint. And Robert Jackson would say, I told you so.
- [37:06]
Ramtin Arablouei
Wow.
- [37:06]
Daniel Tichner
The Constitution from the very beginning in Article 2, gave presidents broad unilateral powers when it came to guarding the national security. So in a sense, it's sort of in the DNA of that institution and an opening for exercising this kind of authority. That logic creates the possibility that a president can do almost anything in the name of national security. The flip side is Sandra Day O'Connor in the subsequent military tribunal case in the early 2000s, said, no, there are certain constitutional rights and protections that are sacrosanct even when you invoke national security. And we will we as a court will measure, we will try to actually judge whether in fact, the crisis that you say requires this in fact does or not. And so that's what I guess we'll all find out soon.
- [38:14]
Rund Abdelfattah
Coming up, how the Alien Enemies act evolves when the president's power grows.
- [38:28]
Daniel Tichner
This is Jack from Springfield, Illinois. And you're listening to Throughline from npr. Thank you for the show. I absolutely love it. Former history major, current government employee, just absolutely love it. Love the context you bring. And I think this world would be a better place if more people listen to this show. So again, thanks. Thanks.
- [38:50]
Dana Farber
This message comes from BetterHelp. Therapy can be expensive, but at BetterHelp, they believe therapy should feel accessible, not like a luxury, which is why they offer quality care at a price that makes sense and can help you with anything from anxiety to everyday stress. Your mental health is worth it, and now it's within reach. Visit betterhelp.com NPR to get 10% off your first month. That's betterhelp.com NPR Part 3 on the.
- [39:20]
Rund Abdelfattah
Desk of the Oval. We spoke with University of Oregon political science professor Daniel Tichner at the end of March, about two weeks after President Trump invoked the Alien Enemies act to deport more than 100 people who he alleged were gang members. Since then, the US Supreme Court allowed the deportations to continue, while challenges to President Trump's use of the Alien Enemies act make their way through federal courts in Texas and New York.
- [39:49]
Daniel Tichner
And so now the question is what's going to happen in terms of as this moves up the pipeline? There's two elements of this that are going to be important to watch. One is what happens when the Supreme Court takes this up and what the court may decide or whether it decides again, as I mentioned earlier, to ultimately determine that it's not going to weigh in because a presidential determination of whether we're facing an invasion is determinative or not. The second part is if the court does weigh in. The interesting thing about the Guantanamo military tribunal case is that the Bush administration followed that decision, adhered to it. What happens if the Trump administration decides that it is not going to follow a Supreme Court ruling or a lower court's ruling? I mean, it's already talked about impeaching judges and so forth. And so that becomes an ultimate test, because courts do not have a police force or army to implement their decisions. And, you know, there's the famous Worcester vs. Georgia decision during the Jacksonian era, in which the Supreme Court upheld a treaty between the United States and the Cherokee Nation, saying that they could not be forcibly removed from Georgia. And apocryphally, Andrew Jackson said, well, Mr. Marshall has made his law, now let him enforce it. Open question where that was actually said. But that's what happened. In essence, the Cherokee people were removed despite the court's decision, because ultimately, the executive decided not to implement what it had decided.
- [41:31]
Ramtin Arablouei
There's a lot of, I think, anger and emotional response out from a lot of people to this invocation of the Alien Enemies act and the deportation of the migrants and the fact that it's not clear whether the Trump administration actually listened to the court order, et cetera. But we have to say, you know, under the Obama administration, there was record numbers of deportations, many of which were questioned by immigrant rights groups around the country. What is it about this moment, do you think, that's like, garnering this response outside of the rhetoric that we're hearing from the Trump administration? Because I'm sure there's an argument that in terms of numbers and in terms of rights violations, that President Obama and President Biden also did a significant number of these kinds of acts.
- [42:19]
Daniel Tichner
That's a great question. And I think one way to think about it is that every president in the modern era, by the stroke of a pen, can exercise enormous power over the fate of non citizens. And so, you know, as you said, you know, during President Obama's time in office, he removed record numbers of individuals. And it captures the extent to which presidents from Obama to Trump actually can engage in dramatic levels of deportation. I think, on the other hand, what's distinctive about invoking the Alien Enemies act is it removes any slight veneer of due process. Yes. That is, non citizens who are facing deportation don't have a lot of rights, but there are some. And when the Alien Enemies act is invoked, there's no day in court, there's no appeal, there's no delay. Essentially, it just, you know, creates an immediate act, which is why it's you know, described as deportation on rocket power or rocket fuel.
- [43:49]
Ramtin Arablouei
At least that was the case before April 7, 2025. According to a new Supreme Court ruling, detainees must now receive adequate notice that they're being removed under the Alien Enemies act and be given an opportunity to challenge their removal.
- [44:04]
Rund Abdelfattah
You mentioned the post 911 Guantanamo decision. And I guess I'm wondering, is there something directly connecting the Guantanamo decision then with how this act might be interpreted by the courts now?
- [44:19]
Daniel Tichner
Yeah, I mean, prior to that war on terror decision and the fate of the Guantanamo Bay detainees, in terms of tribunals, you could point to a steady set of legal interpretations that basically endorse presidents having completely unrestrained presidential, presidential prerogatives when it comes to war, that is enormous emergency powers. And the court basically deferred. And I think what so troubled Justice Jackson at the Korematsu decision and other decisions during World War II was the extent to which the court basically, to be frank, cowered in the face of presidential exercise of power on behalf of us during that existential crisis. And so what stands out about the decision post 911 is that it was this significant example of the Court exercising clear judgment about whether there would be any restraint on presidential power in the name of national security. And I think this case puts that front and center again for us.
- [45:41]
Rund Abdelfattah
You know, I think one of the things that has come up is the distinction between citizen and non citizen. Is there a universe in which if the court, you know, determines it's fine for the permanent residency, let's say the green card holders, the visa holders, that it will eventually also mean that citizens can be subject to deportation eventually? Is that where it leads potentially?
- [46:10]
Daniel Tichner
You know, Donald Trump tweeted not long ago that if the President is doing something to keep us safe, it cannot be illegal. And, you know, that's. That's actually akin to something that Richard Nixon had said in the 70s, which is if the President does something, it can't be unlawful. And the idea is then, and this goes back to kind of philosophical perspective that John Locke captured in prerogative powers, which sometimes you empower a leader to act on her behalf, even where the law is silent and sometimes even against it, if it in fact serves our broader interests, especially when it comes to national security. And so I think the short answer is that that logic creates the possibility that a president can do all, almost anything, in the name of national security. If the court isn't willing to engage in the kind of perspective that Sandra Day O'Connor justified or argued for, is.
- [47:09]
Ramtin Arablouei
This ultimately A story of the executive branches growing power over the last. I mean, basically since the Constitution was still initially formed, it seems to me that this is a part of a function of increasing power grab from the executive branch, regardless of what party the executive branch is represented by.
- [47:33]
Daniel Tichner
Oh yeah, I think that's quite accurate. I mean, presidential scholars debate about when the modern presidency started. Some people say Teddy Roosevelt and Woodrow Wilson, because that's when you have this popular rhetorical presidency. Others say no, no, no, no. It really begins with Franklin Roosevelt as he presides over the Great Depression and World War II. Whenever you want to pinpoint it, there's no question that during the New deal era of FDR and World War II, you have the development of a significant administrative state that is that enormous amounts of power and authority and budget dollars and employees and programs and so forth are consolidated within the executive branch. And as the presidency scholar Sidney Milkus from UVA puts it, the administrative state. The administrative presidency can be a two edged sword used whether you're on the left or right in that office. And so that's a significant part of this. The other on immigration in particular, what stands out is we've had lots of powerful presidents, Lyndon Johnson, Ronald Reagan and others where if you told them that the President would basically sit atop immigration governance, they wouldn't believe you. Because for most of this century of the 20th century, Congress really was the key branch determining immigration policy, at least in terms of key legislation and so forth. And so Teddy Roosevelt, Woodrow Wilson, Truman, Eisenhower, all credibly frustrated that Congress really was playing the key role. What really changed that was our partisan polarization has meant that during the 21st century, Congress is deeply gridlocked on immigration reform. And yes, we saw the Lake and Riley act passed, but really when it comes to more significant legislation, it's like waiting for Godot. That is it's never going to arrive. We are stuck in neutral. And in that context, to fill the void, you've had state and local governments, or so called immigration federalism, much more active. You have the courts active, but most decisively you have presidents with lots of unilateral power involved really in making immigration and refugee policy in America.
- [49:55]
Ramtin Arablouei
What are you most concerned about or attentive to right now about where this could be going next?
- [50:01]
Daniel Tichner
One is that I think it's very traumatizing and chilling. The law and other kinds of draconian restrictions can be weaponized not just in terms of who's specifically targeted by it, but has a much broader effect on the everyday lives of those who may not be targeted but are living in fear in some ways. And it takes me back to my own grandparents experiences where they felt like they were under intense, more intense scrutiny. My grandfather learned English well and didn't have much of an accent. But my grandmother, you know, had a harder time picking up the language, had more of a discernible accent. And so she didn't go out as much. She stayed inside. She, you know, she wanted to stay sheltered away from this. And I think what we're seeing today has the potential, if not already has taken place where it's that on steroids that it, it, it just has this, this impact on how free people feel to live their lives.
- [51:16]
Ramtin Arablouei
Daniel, thanks so much for your time.
- [51:18]
Daniel Tichner
My pleasure.
- [51:24]
Ramtin Arablouei
That was Daniel Tishner, political science professor at, at the University of Oregon and co director of the Wayne Morris center for Law and Politics.
- [51:35]
Rund Abdelfattah
And that's it for this week's show. I'm Rund Abdelfattah.
- [51:39]
Ramtin Arablouei
And I'm Ramtin Arablouei. And you've been listening to throughline from npr.
- [51:44]
Rund Abdelfattah
This episode was produced by me and me and Sarah Wyman, Julie Kaye, Lawrence.
- [51:50]
Dana Farber
Wu, Anya Steinberg, Casey Minor, Christina Kim.
- [51:54]
Rund Abdelfattah
Devin Kadayama, Irene Noguchi. Thank you to Johannes Durgi, Edith Chapin, Colin Campbell, Tommy Evans and Anna Yukonanov.
- [52:04]
Ramtin Arablouei
Fact checking for this episode was done by Kevin Voelkel. The episode was mixed by Robert Rodriguez.
- [52:11]
Rund Abdelfattah
Music for this episode was composed by Ramtin and his band Drop Electric, which.
- [52:15]
Ramtin Arablouei
Includes Naveed Marvy, Sho Fujiwara, Anya Mizani. And finally, if you have an idea or like something you heard on the show, please write us@throughlinepr.org and make sure to follow us on Apple, Spotify or the NPR app so you never miss an episode.
- [52:34]
Rund Abdelfattah
Thanks for listening.
- [52:45]
Dana Farber
This message comes from Warby Parker. If you wear glasses, you know how hard it is to find the perfect pair. But step into a Warby Parker store and you'll see it doesn't have to be. Find a Warby Parker store near you@warbyparker.com retail. This message comes from Bombas. Socks, underwear and T shirts are the top three requested clothing items by people experiencing homelessness. Bombas makes all three and donates one item for every item purchased. Go to bombus.com NPR and use code NPR for 20% off. This message comes from Carvana. Carvana makes car selling easy. Just put in your license plate or VIN and get a real offer in seconds. Whether selling now or whenever feels right. Sell with Carvana.