Podcast Summary: "Enemy Aliens"

Podcast: What Trump Can Teach Us About Con Law
Host: Roman Mars
Guest: Professor Elizabeth Joh
Date: October 29, 2024

Overview

In the episode "Enemy Aliens," host Roman Mars and Professor Elizabeth Joh examine the chilling history and enduring legacy of the Alien Enemies Act—a centuries-old law giving the U.S. President sweeping powers to detain and deport non-citizens from "hostile nations," especially in times of war or perceived invasion. The episode uses the little-known story of Japanese Peruvians interned during WWII to illuminate the Act's dangers, and explores the contemporary relevance as Donald Trump hints at invoking it for mass deportations if re-elected. Through engaging discussion, the episode probes the constitutional, ethical, and practical implications of such executive authority, raising urgent questions about due process, presidential power, and the lessons history refuses to let us forget.

Key Discussion Points & Insights

1. The Untold Story of Japanese Latin American Internment (00:37–05:57)

• Art Shibayama’s Family: In 1944, the Shibayama family, prosperous Japanese Peruvians, were forcibly removed from Peru and handed over to U.S. soldiers. They were stripped of their passports and interned in Crystal City, Texas.
• Broader Sweep: Over 3,000 people from Latin America (two-thirds of Japanese descent, mostly from Peru) were transported and interned in the U.S. with little to no evidence of espionage or sabotage.
  • Quote: “Why were they taken to the United States? Mostly racism from a Peruvian government that wanted them expelled and an American government that considered them a hemispheric threat.” – Elizabeth Joh (04:33)
• Statelessness: Many internees became stateless, with Peru refusing their return and the U.S. considering them illegal after confiscating their documents.

2. The Alien Enemies Act: History and Scope (06:28–10:00)

• Legal Foundation: The Alien Enemies Act (50 U.S.C. §21), part of the 1798 Alien and Sedition Acts, grants the president the unchecked authority to detain or deport nationals of enemy countries in wartime or during invasion, requiring no proof of individual threat.
  • Quote: “The act makes no distinction between noncitizens who are lawfully within the United States and those who are not. Nor does the act require that the President prove that any individual non citizen actually poses a threat to national security.” – Elizabeth Joh (07:49)
• Presidential Proclamations: FDR and later Truman used this Act to target and detain Japanese, German, and Italian nationals until well after WWII.

3. Legal, Ethical, and Political Ambiguities (10:00–15:00)

• Ambiguous Authority: The act’s reach even covered people forcibly brought to the U.S. from other countries—an authority not explicitly provided by the Act itself.
• International Cooperation: Latin American governments, including Peru, cooperated out of shared or self-interested incentives, assisting the U.S. in identifying and removing family members.

4. Mass Deportations and Trump’s Promises (15:04–19:59)

• Modern Application: Trump has publicly stated plans to use the Alien Enemies Act to “remove all known or suspected gang members, the drug dealers, the cartel members from the United States, ending the scourge of illegal alien gang violence once and for all.” (15:45–16:30)
  • Quote: “Trump keeps claiming falsely that there’s a migrant crime wave in the United States…Trump’s argument to his supporters is that he’s going to begin these mass deportations…because they have brought with them an invasion of crime.” – Elizabeth Joh (17:54)
• Potential for Abuse: The Act could, in theory, target even lawful, long-term residents, based only on nationality during undefined invasions, with no recourse or requirement for evidence.
  • Quote: “It doesn’t matter if you have evidence that you aren’t a national security threat or that you are, in fact, loyal to the United States. It doesn’t matter, because that’s not how the act works.” – Elizabeth Joh (19:24)

5. Constitutional & Judicial Oversight (21:17–26:39)

• Supreme Court Deference: The Ludecke case (1948) upheld these broad powers, saying the end of war—and thus the use of these powers—was a decision for the political branches, not the courts.
  • Quote: “The Supreme Court said that whether the United States was still in a state of war was within the judgment of the political branches. That’s Congress and the President, not the courts.” – Elizabeth Joh (21:52)
• Political Question Doctrine: Courts often avoid involvement in such executive actions, classifying war powers as political questions.
  • Quote: “…there is a potential hurdle, a legal doctrine called the political question doctrine…there are some matters that are for the political branches, Congress and the president to decide.” – Elizabeth Joh (23:14)

6. Enduring Power & Lack of Reform (26:39–28:45)

• Why the Law Persists: Proposed reforms to repeal or modify the Act have failed, often due to political reluctance to limit wartime executive authority—even as its group-based targeting contradicts modern legal values of individual due process.
  • Quote: “There’s definitely some nervousness around that. But as I said, one of the strange things about this law, which has been on the books since 1798, is that it’s absolutely contrary to the way we think about modern law.” – Elizabeth Joh (27:22)

7. The Fate of Japanese Latin American Internees (28:45–31:30)

• Lack of Acknowledgment: Reagan’s 1988 Civil Liberties Act provided $20,000 compensation and an apology only to Japanese Americans, not Japanese Latin Americans.
• Limited Restitution: Children born in U.S. camps received full redress due to birthright citizenship; other internees only a fraction. International human rights bodies condemned the U.S. actions but had no enforcement power.
  • Quote: “In 2017, Art Shibayama and his brothers turned to the Inter American Commission on Human Rights…Art did not live to see it resolved. He died on July 31, 2018, at the age of 88…” – Elizabeth Joh (29:56)

8. Big-Picture Reflection on Power and Precedent (31:30–32:52)

• Cautions for the Future: Abuse of the Act has been bipartisan and ongoing. The law offers dangerous power, regardless of which party or president wields it.
  • Quote: “The idea of this at his disposal…is just Kafkaesque type of power…subject to all of these laws and has no way out of it, just seems like a completely anti humanist stance. It’s just diabolical.” – Roman Mars (30:50)
• Civic Responsibility: Voters should beware of broad, unchecked presidential powers and remember the human cost of abuses.

Memorable Quotes & Moments

• Elizabeth Joh on the Act’s Rationale:
  “And the idea of the act is to provide the President of the United States the power to prevent foreign spying and sabotage during wartime.” (07:59)

• Roman Mars’ Reaction to the Broad Powers:
  “I can’t believe that. The only thing holding it in check is the idea of what is a war or what is an invasion…That declaration is so chilling.” (19:59)

• On Lasting Harm:
  “You can easily see how so many people who’ve done nothing wrong can be caught up in an enforcement action in which their lives are ruined.” – Elizabeth Joh (25:45)

• Big Picture Takeaway:
  “This type of power is bad when it’s in Roosevelt’s hands, it’s bad when it’s in Trump’s hands. And it’s bad power. It’s bad power to have.” – Roman Mars (32:28)

Important Segment Timestamps

• Art Shibayama and Japanese Peruvian internment: 00:37–05:57
• Reading and overview of the Alien Enemies Act: 06:28–08:39
• Presidential war and invasion powers explained: 08:45–10:00
• Japan, Peru, and U.S. cooperation on removals: 11:49–12:46
• Trump’s modern invocation of the Act: 15:13–16:45
• Supreme Court’s Ludecke decision and political question doctrine: 21:17–23:14
• Barriers to repealing the Act and its contradiction with modern law: 26:39–28:45
• Outcome for Japanese Latin American internees: 28:45–31:30
• Closing reflections on the risk of unchecked power: 31:30–32:52

Tone & Takeaway

Roman Mars and Elizabeth Joh maintain an urgent yet conversational tone—earnest, accessible, and unflinching in their criticism. The episode is both a sobering history lesson and a timely warning, illustrating how unchecked executive power can (and does) lead to grievous injustice, especially under the pretense of national security. The moral: powers granted during exceptional times rarely disappear—and the character of leaders wielding them is the last, worst safeguard.

Recommendation:
For anyone seeking a deeper understanding of the constitutional, historical, and human ramifications of presidential emergency powers—and why vigilance is necessary—this episode is essential listening.