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Why Rep. Ilhan Omar wants to repeal a U.S. law that’s been on the books for more than two centuries

The Alien Enemies Act, first aimed at suspected French-sympathizers during the Adams administration, has been used to justify everything from Japanese internment to Trump’s travel ban.

Rep. Ilhan Omar
Rep. Ilhan Omar: “No one should be targeted based solely on their religion, ethnicity or national origin. This xenophobic law is dangerous and must be taken off the books.”
REUTERS/Kevin Lamarque

Democratic Rep. Ilhan Omar reintroduced a bill on Tuesday to repeal the 223-year-old Alien Enemies Act.

Called the Neighbors Not Enemies Act, Omar’s bill would repeal the Alien Enemies Act of 1798, a law that was part of the “Alien and Sedition Acts,” a set of four bills used to target immigrants and non-citizens during times of war. The Alien Enemies Act allows the president to determine how and if foreign nationals from a specific country should be “apprehended, restrained, secured and removed” from the U.S. and has been used in multiple occasions throughout American history, including as a justification for Japanese internment camps during World War II.

“No one should be targeted based solely on their religion, ethnicity or national origin. This xenophobic law is dangerous and must be taken off the books,” Omar said.

Omar first introduced the bill in January of 2020, when it was referred to the House Judiciary Committee. It never received a vote on the House floor.

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The travel ban

Why get rid of a law that’s been in place since the John Adams administration? Omar had in mind a more recent president: Trump. Specifically, Omar pinpointed his 2017 ban on travel to the U.S. by nationals from seven Muslim-majority countries.

Franklin D. Roosevelt
Photo by Leon Perskie
Franklin D. Roosevelt
Though Trump’s ban was ultimately upheld by the Supreme Court on the basis of the president’s broad authority over immigration, the former president cited the actions of Franklin Delano Roosevelt during World War II incarcerating Japanese, German and Italian citizens (and American citizens of those nationalities) in justifying his ban. “We’re at war with radical Islam,” Trump said on on MSNBC’s “Morning Joe.”

The State of Hawaii challenged the ban by preventing the enforcement of Trump’s order, and the Trump administration sued, asking the Supreme Court to hear the case. The  Supreme Court upheld the travel ban in a 5-to-4 vote, saying that the president’s power to secure the country’s borders was not undermined by Trump’s “history of incendiary statements” about the dangers he said Muslims pose to the U.S.

The court’s ruling was based on the president’s power under a different law, but still, Omar cited Trump’s rhetoric about the ban in explaining the need to repeal the Alien Enemies Act. “This outdated law allows the president to detain and deport immigrants based solely on their nationality,” Omar said. “It was used to justify Japanese American internment, and the Muslim Ban by the Trump administration.”

A troubled history

The Alien Enemies Act was part of a package of bills signed into law by President John Adams. Collectively, this group of bills was known as the Alien and Sedition Acts. These laws were passed when the U.S. was on the brink of war with France. Members of the Federalist party feared that noncitizens in the U.S. would sympathize or side with the French during the war.

President John Adams
Painting by Gilbert Stuart
President John Adams
The Alien Enemies Act permitted the government to arrest and deport “all male citizens of an enemy nation in the event of war.”

By 1802, all of the Alien and Sedition Acts had expired or been repealed, except for the Alien Enemies Act. In subsequent years, Congress has only expanded the reach of the act. For example, in 1918 Congress amended the act to include women.

On December 7, 1941, President Franklin Delano Roosevelt used the Alien Enemies Act to issue presidential proclamations to “apprehend, retrain, secure and remove” Japanese, German and Italian non-citizens in response to the bombing of Pearl Harbor.

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The next year, Roosevelt signed an executive order authorizing the U.S. secretary of war to create military zones within the country, clearing the way for the incarceration of Japanese Americans during the war. Of the estimated 120,000 people of Japanese ancestry who were held in internment camps, 62% were American citizens.

New York’s Ellis Island, a major point of entry for European immigrants at the time, continued to incarcerate ethnic Germans after the war. In 1948 the Supreme Court ruled to release a German man who had been detained since 1941, but found that the Alien Enemies Act allowed people to be detained beyond the time hostilities ended, until a treaty was signed with the hostile nation, in this case Germany.

Slim chance of repeal

In 2020, Rep. Omar’s first iteration of the Neighbors Not Enemies Act did not have much of a chance against the Trump White House. Even if it does get a vote in the House this year, and even if it passes, it’s highly unlikely the bill will get a vote in the 50-50 Senate, where legislation has already dragged at a snail’s pace this year.

The slim chance of repealing the Alien Enemies Act hasn’t stopped Omar, though.

“This outdated law allows the president to detain and deport immigrants based solely on their nationality,” she said. “It was used to justify Japanese American internment, and the Muslim Ban by the Trump administration. We must close all policy loopholes to prevent more pain to be inflicted on our communities. It’s way past time we put this hateful law in the dustbin of history where it belongs.”