While Trump is considering deporting or imprisoning non-citizens (or even citizens) based on their ethnic background, unproven gang membership, or some allegedly criminal acts, it is crucial to make sure that any claims of criminality be proven with ample due process under established law. We should not incarcerate or intern residents or citizens subject to American jurisdiction for no reason.
Under the Enemy Aliens Act of 1778, we interned in camps 120,000 American citizens and legal residents of Japanese origin (or maybe even those whose families just came from Japan) on the basis of their ethnic background. There were almost no convictions or even arrests of any of those individuals or other Japanese-Americans for traitorous acts occurring during the entire period of World War II. (There was one conviction for a protest in the prison camp over the incarceration procedures and living conditions.) In other words, we put citizens and legal residents of the U.S. in prison camps over a period of years without even a scintilla of evidence or any indication they had done anything wrong. There was no trial or fact-finding of any traitorous or criminal acts by those imprisoned. More than 40,000 were children!
Approximately 120,000 people were incarcerated because of racial prejudice and a fear for public security during a time of actual declared warfare between Japan, Germany, Italy, and the United States. The Enemy Aliens Act clearly states that a declared state of war must exist between nations for its invocation, and the Supreme Court has stated that portions of many of the four Alien and Sedition Acts are probably unconstitutional. (The Enemy Aliens Act of 1798 is one of the four.). We are not in a state of declared war with anyone. Period.
This imprisonment is one of the greatest stains on our country’s reputation and honor. Both German-American and Japanese-Americans were deemed “Enemy Aliens” and subject to restrictions including limited travel. (Only 13,000 German-Americans were interned, and 600 Italian citizens, perhaps an indication of racial fear or just plain racism.)
Trump had threatened and promised his supporters he would invoke the Enemy Aliens Act of 1798; he most recently bragged about doing it in his inaugural address and has now used it to deport alleged gang members to San Salvador, which is apparently happy to receive them. The law that was used to intern our innocent countrymen and -women 80 years ago—and only once before in World War I—is now being used again.
Is the next step to imprison all suspected disloyal Americans, whether citizens or not, without a trial? How about if you disagree with Trump’s anti-DEI policy, or if lawyers defend those the administration doesn’t like, or, perish forbid, bring an action against the government or Trump himself—even impeachment! He is already retaliating against all the above in various ways—is the next step incarceration with no trial? This is not hyperbole; he has said he would use the act and is doing so right now.
It couldn’t happen here? It did, and it is happening now. When the Whitehouse press secretary says that there is no judicial review allowed of the president’s foreign policy decisions—thus cancelling out 200 years of settled law since Marbury vs. Madison—you know we are in trouble. When the president criticizes judges and demeans the legal system, you wonder about his commitment to the rule of law. When his cabinet members and the vice president say we are living in a post-constitutional time, we wonder if they are warning us and trying to intimidate the conservative majority in the Supreme Court.
Will the Supreme Court uphold the right of judicial review? Will it stand up to a legal attempt at a coup d’etat? How confident are we that they will rein in the illegal acts of this administration, as numerous lower court judges have done. Trump recently said he would obey court orders, but do we believe him? It is hard to sleep nights.
