Finding a suitable excuse that’s 227 years old

Opinion

Hey there, time traveller!
This article was published 19/03/2025 (184 days ago), so information in it may no longer be current.

If your party has control of the American Congress, the Senate and the executive branch, why would it be necessary to sample a law from 227 years ago to find legal justification to deport people from the United States?

Yet that’s what U.S. President Donald Trump did this past week, using the language of the 1798 Alien Enemies Act to deport gang suspects from the United States without any kind of due process.

The Act was passed as part of a lead-up to an anticipated war with France, and was never repealed. It says, in part, “That whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the president of the United States shall make public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of (14) years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies.”

Now, the United States isn’t currently at war, nor are the actions clearly being undertaken by a “foreign nation or government,” so using the law looks a lot like overreach anyway.

But not only that: it was 1798.

In 1798, the United States was only a stripling nation, just 22 years old, and the government had to allow gold and silver coins from other nations to be used as legal tender in the United States, because it wasn’t able to mint enough of its own coins.

In 1798, the president was allowed to borrow a total of just US$5 million more than the tax revenues of the new country.

But that’s how far back Donald Trump has to go for a precedent?

To when naval ships were made of wood, and Congress passed legislation, “That the president of the United States shall be, and he is hereby authorized to direct a sum not exceeding (US$200,000), to be paid out of any monies in the treasury, not otherwise appropriated, to be laid out in the purchase of growing or other timber, or of lands on which timber is growing, suitable for the navy, and to cause the proper measures to be taken to have the same preserved for the future uses of the navy”?

To when it was still permissible — actually, expected — for sailors in the U.S. Navy to be whipped for swearing or drunkenness: “Any person who shall be guilty of profane swearing, or of drunkenness if a seaman or marine, shall be put in irons until sober, and then flogged if the captain shall think proper … No commander, for any one offence, shall inflict any punishment beyond (12) lashes upon his bare back with a cat of nine tails, and no other cat shall be made use of on board any ship of war, or other vessel belonging to the United States…”

These are samples of 1798 U.S. legislation from the official record of the Fifth Congress of the United States. A time when the secretary of state was paid an augmented annual salary of US$5,000; the secretary of the navy, $4,500; the attorney general, US$3,000.

When slavery was still legal in every state in the Union. More than 60 years before the Civil War. Benjamin Franklin was still alive: Abraham Lincoln had not yet been born.

And Donald John Trump found some tenuous sliver of jurisprudence to justify what he was going to do anyway.

We are living in truly dangerous times.