President Donald Trump promised to revive the Alien Enemies Act of 1798 during his campaign last fall. “To expedite removals of this savage gang,” Trump pledged in an October campaign stop, “I will invoke the Alien Enemies Act of 1798 to target and dismantle every migrant criminal network operating on American soil.”

The Alien Enemies Act of 1798, a long dormant law passed by Federalist Party militants but still on the federal legal books, stated “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,” the president has the power to deport all non-citizens of that country if they are “males of the age of fourteen years and upwards.” The idea at the time was to remove military-age foreign men likely to engage in martial combat against American citizens during a particular time of turmoil with revolutionary-era France (against which there was a pseudo-war under letters of marque and reprisal on the high seas).

In an inauguration day executive order on immigrant removal, Trump mentioned “recalcitrant countries,” but named no particular country that had threatened the United States in his application of the Alien Enemies Act. On March 15, he named Venezuela’s Tren de Aragua drug gang in an Executive Order as a terrorist organization under which he would deport aliens using the Alien Enemies Act.

The U.S. Supreme Court has (as of this writing) let Trump’s deportations take place under the Alien Enemies Act, even among those who are not Venezuelans.

Few Americans today are aware of the vehement and principled opposition to both the Alien and Sedition Acts by American founders Thomas Jefferson and James Madison. Jefferson, author of the Declaration of Independence, wrote in the Kentucky Resolutions that control over immigration was constitutionally administered by the states (and except for these rarely-invoked Alien Acts of 1798, would continue to be until 1892), and that the Tenth Amendment prohibited the federal government from even legislating on immigration:

“Alien friends are under the jurisdiction and protection of the laws of the State wherein they are: that no power over them has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens.” 

If your head is exploding because you didn’t know that immigration is not among the enumerated powers of the federal government, and that the TentA amendment prohibits the federal government from legislating on immigration, you’re not alone. Likewise, most Americans, who think we’re not a nation without national immigration laws, would be shocked to find that states (not the federal government) managed immigration law until Ellis Island opened on January 1, 1892. Yet not one of the MAGA people celebrates January 1 as American Independence Day.

But there’s more.

Jefferson, writing for the Kentucky state legislature, went several steps further in condemning the Alien Enemies Act, noting that it mandated “transferring the power of judging any person, who is under the protection of the laws from the courts, to the President of the United States,” and that it “is not law, but is altogether void, and of no force.” 

The Kentucky legislature vowed to fight the Alien Enemies Act, and its companions the Alien Friends Act and the Sedition Act (all passed by Congress in 1798) with the strategy of “nullification” by providing the then-tiny federal government no assistance in enforcing these laws. 

Likewise, James Madison, as close to an author of the U.S. Constitution as the document has, was even more insistent with his warnings about how the law violated the Constitution, noting that the Alien Enemies Act combined the powers of legislative, executive, and judicial branches into the very person of the president where “His will is the law.” Madison wrote of the Alien Enemies Act for the Virginia legislature in his “Virginia Report of 1800” against the Alien Enemies Act: 

“Could a power be well given in terms less definite, less particular, and less precise? To be dangerous to the public safety; to be suspected of secret machinations against the government: these can never be mistaken for legal rules or certain definitions. They leave every thing to the President. His will is the law.

But it is not a legislative power only that is given to the President. He is to stand in the place of the judiciary also. His suspicion is the only evidence which is to convict: his order the only judgment which is to be executed.”

Madison’s earlier 1799 Virginia resolutions echoed Jefferson’s Kentucky Resolutions that immigration was a state concern and the “Alien and Sedition Acts passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government.” The Virginia Resolutions also pointed out that powers not enumerated to the federal government in the U.S. Constitution are reserved to the states under the Tenth Amendment.

And Madison’s Virginia Resolutions pledged “interposition,” non-violent resistance to any federal attempts to enforce the Alien and Sedition Acts in Virginia, claiming the states were “duty bound, to interpose for arresting the progress of the evil.”

In a sense, Jefferson and Madison created the “sanctuary” movement for immigrants back in 1798-1800.

The hue and cry among Trump’s defenders is that the U.S. Constitution applies only to U.S. citizens and not to foreigners (and therefore, by implication, the whole world). In one sense, they’re right. But not in the sense that they think. Madison explained in his Virginia Report of 1800, “Alien friends, except in the single case of public ministers, are under the municipal law, and must be tried and punished according to that law only.” The U.S. Constitution only gives the federal government the right to confer national citizenship, not to control immigration, a government power exercised by the states from the Declaration of Independence until Ellis Island opened up in New York Harbor, replacing and copying immigration procedures from New York State’s Castle Garden immigration system. 

Trump supporters forget the Constitution was written to be applied as a restraint on the government, not so that it could be applied to any group of people. And its universal application protects citizens and alien immigrants alike. For if, as some argue, the federal government may deport foreigners without due process, then it’s bound to eventually make a mistake and deport a citizen without due process. The due process exists to protect the citizen, not the criminal. This was a point Jefferson emphasized in his Kentucky Resolutions:

“…the friendless alien has indeed been selected as the safest subject of a first experiment; but the citizen will soon follow, or rather, has already followed, for already has a sedition act marked him as its prey.”

Indeed, it already had, in the cases of Joseph Callender, Matthew Lyon and others. Madison added in his Report of 1800:

“If aliens had no rights under the constitution, they might not only be banished, but even capitally punished, without a jury or the other incidents to a fair trial. But so far has a contrary principle been carried, in every part of the United States, that except on charges of treason, an alien has, besides all the common privileges, the special one of being tried by a jury, of which one half may be also aliens.” 

Yet despite the blatant unconstitutionality of the Alien Enemies Act, President Trump has failed even to conform to the very loose limits of this federal laws’ restrictions. He has pursued the deportation of green card holder and Algerian immigrant Mahmoud Khalil even though Secretary of State Marco Rubio submitted testimony in federal court Khalil had engaged in fully “lawful” conduct while living in America. Rubio stated his reasons for trying to deport Khalil was “the Secretary of State must personally determine that the alien’s presence or activities would compromise a compelling U.S. foreign policy interest.” Rubio alleged Khalil had engaged in “anti-Semitic conduct and disruptive protests in the United States,” by which he means Khalil had engaged in speech opposed the ongoing Israeli war on Palestinian civilians in Gaza, funded by U.S. foreign aid. Mahmoud Khalil is Algerian, which is neither at declared war with the United States nor a country mentioned by Trump as having been engaged in a threat of “invasion or predatory incursion” against the territory of the United States under the Alien Enemies Act.

It’s important to stress here that Mahmoud Khalil is being deported because of his political opinions, like the Sedition Act of 1798, and not the threat that he may engage in military combat against American citizens, according to the official testimony of the Trump administration. Khalil’s “crime” and interference with a “compelling U.S. foreign policy interest” was simply exercising his God-given freedom of speech against the ongoing slaughter of Palestinians by the Israeli military.

Of course, if the U.S. government may infringe on the First Amendment-protected rights of legal immigrants (and in this case, one with a U.S. citizen spouse), what’s to stop them from punishing citizens whose opinions run afoul of official Washington?

There’s precedent for this happening. 

Matthew Lyon, an immigrant and naturalized American citizen, and member of Congress from Vermont, was charged and convicted under the Sedition Act back in 1799 for calling President John Adams names (“corrupt,” etc.) in his Vermont newspaper. Imprisoned for four months as an active Democratic-Republican Party member of Congress, he ran for re-election against a Federalist opposition candidate from his jail cell and won re-election by almost a 2-1 margin.

And none of the laws justify Rumeysa Ozturk’s abduction by masked men from the streets of Somerville, Massachusetts. A thirty-year-old female Tufts University doctoral student and legal immigrant/green card holder from Turkey, a NATO ally, Ozturk would be deported for the crime of writing an op-ed on the Israel-Gaza situation.

It’s more than a bit far-fetched to claim this slip-of-a-woman from an allied country who had come into the United States legally would apply to the “Alien Enemies Act,” which stipulates that it can only be applied against military-age men from hostile countries.

Trump’s application of the Alien Enemies Act of 1798 might thus far be summed up: If you’re going to violate the U.S. Constitution and laws under it, why not go big?

But for American citizens who want to return to the time of limited government, another path of opposition in the mold of Jefferson and Madison’s nullification and interposition is required.