At Law & Liberty, Rob Natelson: Alien Enemies, Alien Friends, and the Concept of “Allegiance”. From the introduction:
Even before President Trump invoked powers under the 1798 Alien Enemies Act, the historical meaning of “alien enemy” had become a topic of controversy, because the distinction between an alien enemy and an alien friend is also relevant in the context of immigration and birthright citizenship.
Largely overlooked in this debate has been the legal doctrine that defines the difference between an alien enemy and an alien friend: the doctrine of allegiance, which our Founders inherited from English law. The English doctrine closely paralleled the international law concept of the same name.
To understand the Alien Enemies Act, it is important to understand the Founding-era rules of allegiance and how they divide alien friends from alien enemies. We cannot here fully address the president’s deportation power, because the Alien Enemies Act does not authorize presidential deportation of all alien enemies—only those participating in an “invasion or predatory incursion … by a foreign nation or government.” It is nevertheless a useful starting point to recover the historical meaning of this distinction.
The doctrine of allegiance is crucial for understanding the Alien Enemies Act, but it also is crucial for understanding the Constitution itself. The meaning of many of that document’s terms rests in part on the meaning of allegiance. Examples include the Define and Punish Clause (Article I, Section 8, Clause 10), which grants power to Congress to regulate immigration and emigration; the requirement that the president be a “natural born Citizen” (Article II, Section 1, Clause 5); the provisions addressing treason (Article I, Section 6; Article II, Section 4; Article III, Section 3 & Article IV, Section 2, Clause 2); and federal and reserved state war powers (Article I, Section 8, Clause 11, Article I, Section 10, Clause 3, and others). And as the Supreme Court recognized in United States v. Wong Kim Ark (1898), allegiance also is central to the meaning of the 14th Amendment’s phrase “subject to the jurisdiction thereof”—and therefore to the meaning of birthright citizenship.
And from the conclusion:
The term “alien enemies” in the Alien Enemies Act includes 1) foreigners in the United States from nations with which we are at war where no specific permission has been granted to stay; 2) foreigners who participate in an attack on the United States, irrespective of whether the United States is at war with their nation of origin; 3) foreigners who otherwise conduct themselves in ways inconsistent with allegiance to the United States; and 4) foreigners who entered the United States illegally.
As noted above, though, status as an alien enemy is not sufficient to trigger the Alien Enemies Act. Those debating whether the Act can be invoked should focus on whether those the president has ordered deported are participants in an invasion or predatory incursion sponsored by a foreign government.
Agreed (at least on the last point). See my discussion here.
Thanks to Andrew Hyman for the pointer.
UPDATE: Professor Natelson has a related essay at Civitas Outlook: Impeachment: Is Judge Boasberg Guilty of a “High . . . Misdemeanor?” ("Conclusion: It would be unconstitutional to impeach Judge Boasberg for issuing a bad decision.")
Posted at 6:07 AM