It’s one of many long-ignored laws now ripe for politically motivated abuse. ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

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In 1798, Congress passed the Alien and Sedition Acts. These laws criminalized dissent, abused civil liberties, and violated the Constitution. They are among the most notorious laws in history. One is still on the books, the Alien Enemies Act of 1798.

The law has only been used three times: During the War of 1812. During World War I. And most notoriously, to imprison tens of thousands of innocent noncitizens of Japanese, German, and Italian descent in internment camps during World War II.

Thomas Jefferson decried the Alien and Sedition Acts as part of a “reign of witches.” Recently, Donald Trump called the last of these laws something else. Let’s call it Project 1798.

This past weekend, Trump pledged to launch “Operation Aurora,” a plan to deploy the military on U.S. soil to seize, detain, and deport immigrants he deems dangerous. “Can you imagine? Those were the old days when they had tough politicians, have to go back that long,” he told a rally on Saturday. “Think of that, 1798. Oh, it's a powerful act. You couldn't pass something like that today.”

To be clear, such a step would be illegal. As my colleague Katherine Yon Ebright notes in her comprehensive review of the law

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, it can only be used when there is “a declared war between the United States and any foreign nation or government

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,” or where a government has militarily invaded the country. It’s a wartime statute, as the Supreme Court has confirmed

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, that allows presidents to detain or deport the natives and citizens of an enemy nation.

This would violate basic civil liberties, and one hopes that courts would uphold the Bill of Rights. But the Supreme Court previously refused to step in to police postwar uses of the law, reasoning that the continued existence of a war was a “political” question beyond the purview of judges. And that was a Court with a reasonable track record for integrity. Let’s get real: Should we trust this Supreme Court to stand up for the rule of law and strike down a peacetime abuse of the Alien Enemies Act?

Congress should repeal the Alien Enemies Act. That is a step that should have been taken long ago. And there are other dusty and little-used statutes that could be abused by an aggressive president. Too often, we rely on presidential self-restraint rather than enforceable protections for the public.

The Insurrection Act dates back to 1807. A president last used it to send troops to quell violence in Los Angeles more than three decades ago. Trump has vowed to use it as part of his mass deportation scheme. As the Brennan Center has documented

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, there are few guardrails to prevent a president from abusing this law.

The National Emergencies Act allows a president to declare an emergency, with few guideposts, and grants extraordinary power when that happens. It is appropriately used when there is, well, an emergency — a terrorist attack or a massive electrical grid failure, for example. It should not be invoked to pursue policy goals such as those around immigration.

A bipartisan group of lawmakers understands the risks. Last month, two congressional committees backed reform legislation that would require Congress to approve an emergency declaration within 30 days. Presidents could act with dispatch, but the Constitution’s checks and balances would stay strong too.

All these laws, so subject to abuse, are often at the heart of the worst episodes in American history. The eminent historian Gordon Wood, writing in the Oxford History of the United States, called the Alien and Sedition Acts a “disastrous mistake” that “thoroughly destroyed the Federalists’ historical reputation.” More than two centuries later, Congress has an opportunity to end the disgrace.





Reining in DHS’s Domestic Policing

The Department of Homeland Security’s Federal Protective Service (FPS) is tasked with protecting federal facilities, their employees, and the people who access them. But its broad mandate, coupled with minimal oversight, has resulted in a troubling track record of power abuses and mismanagement. Adding to the concerns, the conservative policy plan Project 2025 proposes further weaponizing the agency for political purposes, such as suppressing protests. To tackle these issues, “Congress should refocus FPS’s mission, cut unnecessary and vague authorities, and mandate clear safeguards and transparency,” Spencer Reynolds writes. Read more

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What’s New in Trump’s January 6 Case?

After a monthslong hiatus, Special Counsel Jack Smith’s prosecution of Donald Trump for election interference is moving forward, with his latest unsealed brief outlining how the case obeys the Supreme Court’s ruling on presidential immunity. Trump quickly accused Smith of foul play over the timing of the brief, but those claims don’t hold up — the briefing schedule was set by the judge, as former U.S. attorney Joyce Vance explains. “Trump’s complaints about the process are just another manifestation of his familiar legal strategy: delay,” she writes. Read more

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Lies That Damage Democracy

Election deniers are pushing conspiracy theories to lay the groundwork for challenging election results if their preferred candidates don’t win. One of the myths they’re spreading is that noncitizens are voting in large numbers. Our new resource

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debunks these false claims and identifies the individuals behind them. The truth is that there are strong safeguards in place to ensure that only U.S. citizens can vote. Claiming otherwise causes “real damage to real people and to our democracy,” Allison Anderman writes. Read more

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Time’s Up for Lifetime Tenure

As popular support grows for imposing 18-year term limits on Supreme Court justices, some worry that the proposal would cut against the framers’ vision that justices serve for life as long as they maintain “good behavior.” In the next installment of our essay series on term limits, historian Jack Rakove argues that the opposite is true. “History has since revealed that giving Supreme Court justices tenure during good behavior no longer provides the impartiality and independence that the framers intended to bestow,” he writes. Read more

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Coming Up

VIRTUAL EVENT: Promoting Justice and Public Safety Since the Pandemic

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Thursday, October 17, 3–4 p.m. ET



Crime has long been a political wedge issue used to stoke anxiety and stir division. Although the pandemic crime spike is receding, the politicians who fearmongered about crime in 2020 continue to call for harsher punishments and the repeal of reforms. Join members of Law Enforcement Leaders

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as they discuss the effects of reforms, evidence-based solutions for reducing crime, and new strategies to lower recidivism rates and promote successful reentry into society. RSVP today

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Produced in partnership with Law Enforcement Leaders to Reduce Crime and Incarceration, a project of the Brennan Center



VIRTUAL EVENT: What’s at Stake on State Ballots

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Tuesday, October 29, 3–4 p.m. ET



Electing a president is not the only high-stakes choice voters will make in November. In Ohio, citizens will vote on a constitutional amendment that would end gerrymandering in the state. Voters in 10 states have the opportunity to amend their state constitutions to affirm or expand protections for abortion care. Three states will decide whether to remove language against same-sex marriage from their state constitutions.



Join this expert discussion about the issues on state ballots in the 2024 election, as well as efforts to reduce citizens’ ability to enact policy through ballot initiatives. RSVP today

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Produced in partnership with State Court Report

Want to keep up with Brennan Center Live events? Subscribe to the events newsletter.

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News

Alice Clapman on the facts about voter fraud // NPR

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Andrew Garber on poll watchers // DALLAS MORNING NEWS

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Sean Morales-Doyle on the myth of noncitizen voting // ABC

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Kevin Morris on post-hurricane voting // AXIOS

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Leah Tulin on preelection litigation to watch // SALON

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