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October 30, 2007
The Alien Enemies Act of 1798 - Any Lessons Here?
In Ch. 3, § 1288 of his Commentaries on the Constitution, Justice Joseph Story described the Alien laws this way:
One (the Alien act) authorized the president to order out of the country such aliens, as he should deem dangerous to the peace and safety of the United States; or should have reasonable grounds to suspect to be concerned in any treasonable, or secret machinations against the government of the United States, under severe penalties for disobedience.
The Alien law -- passed by Congress and signed by the president -- granted what can be fairly said to be robust means for the executive branch to defend the United States against non-citizens suspected of threatening America's safety. Today, these are precisely the kind of powers the Bush administration claims to be *inherent* in Art. II's "defending" clause (otherwise known as the "commander-in-chief clause) and beyond regulation by Congress.
Here is how Justice Story, in 1833, described in Ch. 3, § 1288 of his Commentaries the arguments of those advocating the constitutionality of the Alien laws:
The ground of the advocates, in favour of these laws, was, that they resulted from the right and duty in the government of self-preservation, and the like duty and protection of its functionaries in the proper discharge of their official duties.
Or you might say, "The Constitution is not a suicide pact, and the president is duty-bound to defend the citizens of this country by whatever means he deems necessary."
On the flip side, Justice Story summarized the counter-arguments this way:
The Alien act was denounced, as exercising a power not delegated by the constitution; as uniting legislative and judicial functions, with that of the executive; and by this Union as subverting the general principles of free government, and the particular organization and positive provisions of the constitution
The Alien Enemies Act survived. Its current form is codified in the U.S. Code at 50 U.S.C. §§ 21-24. The Act is limited to aliens from countries at war with the United States. And a good deal of due process and judicial oversight is involved, at least as compared to unlawful enemy combatants.
So in 1798, we had a Congress and president who thought these laws constitutional and opponents who did not. Both groups were men who either helped frame the constitution or were certainly aware of the arguments for and against.
It seems to me that the Act's opponents, more knowledgeable than we about the original meaning of Art. II of the Constitution, would certainly have opposed Adam's unilateral assertion of congressionally unauthorized power to do what the Act otherwise allowed. It seems less clear, however, whether Adams himself, or the federalist Congress in 1798, would have taken that view.
What we do know, at least, on the subject of enemy aliens -- with the Constitution less than 10 years old -- is that the Congress found it *necessary and proper* to pass laws in order to authorize the president to act. And Adams made no claim of inherent executive power in response.
Posted by shertaugh at October 30, 2007 12:01 PM