Latino Immigrants Are Not “Foreign Enemies”

When anti-immigrant groups use the word “invasion” to describe the arrival of migrants at the U.S. border, they are not just drawing on a xenophobic history of hostility toward immigrants or white nationalist conspiracy theories about demographic replacement.

Not only are they trying to evoke a lawless war zone full of violence and crime – not to mention that immigrants are less likely to commit crimes than citizens.

These groups use the word “invasion” to suggest that drastic, emergency measures must be taken to protect U.S. territory.

During his campaign this year, former President Donald Trump raised the idea of ​​mass deportations, particularly of Latino immigrants. And he has promised to invoke a dangerous and outdated law that could give the executive office all the power it needs to arrest noncitizens — including permanent residents and refugees — without due process, other branch controls or guarantees of protection deporting people's civil rights and freedoms.

That law is the Alien Enemies Act, an authority that can only be invoked in times of war, invasion, or predatory raids. As a new report from the Brennan Center makes clear, this power is already dangerously excessive and blatantly discriminatory. And using it in peacetime would be a shocking abuse. It should be eliminated.

Under existing legal interpretation, the Alien Enemies Act allows the President to arrest and deport “all” unnaturalized immigrants from a hostile country, regardless of their legal status, conduct, or length of stay in the United States. It has even been used against people who were born in a neutral country but whose parents came from an enemy country. The law is not only dangerous in the wrong hands, but also completely unnecessary. The United States now has other ways to protect itself from foreign sabotage or espionage in wartime – means that do not involve the unjustified persecution of people because of their origin or ethnic identity.

The Alien Enemies Act has been invoked only three times in the two centuries since its passage, most notably as a justification for the internment of Japan during World War II. Its past use has led to apologies from lawmakers, reparations to victims and calls for a complete repeal of a law that represents some of the most shameful episodes in U.S. history.

Now anti-immigrant politicians want to use this war agency as a turbocharged peacetime deportation force under the pretense that it will protect the United States from an “invasion” of Mexican cartels engaged in human smuggling and drug trafficking.

Whether the courts would prevent the law's use as a peacetime weapon is unclear, since judges often defer to the president or Congress on “policy issues” affecting national security. Furthermore, the Alien Enemies Act has not been tested in court since its last assertion during World War II.

The Brennan Center report provides legal arguments for challenging the law itself, as well as challenging any misuse of the law to carry out mass deportations without war. But Congress could also act and repeal the law long before a president tries to use or abuse it.

The Alien Enemies Act is unfair, racist and ineffective. Given the way some groups seek to use the law against immigrants, it is also broad enough to invite abuse in peacetime.

This law was shameful and dangerous when it was created 200 years ago. Today it is even more so. It must be repealed or abolished.