Alien Friends and Alien Enemies

The nation's founding documents are very clear about which noncitizens should be allowed to remain in the United States and those who do not enjoy immunity from expulsion.

Photo by Miko Guziuk on Unsplash

President Donald Trump’s invocation of the Founding-era Alien Enemies Act to justify deportation of alleged gang members has sparked much controversy, largely aligning with people’s thoughts on whether mass immigration is a danger or a blessing to the United States.

Lost in the discussion has been an important question: What is an alien enemy?

Constitutional scholar Robert G. Natelson provides an excellent analysis of the difference between an alien friend and an alien enemy, as the writers of the Constitution and the relevant laws understood those terms:

The word “alien” was a synonym for foreigner. Resident alien friends were foreigners who were not classified as alien enemies and entered and remained in the host country under circumstances implying submission to its laws. When a resident alien friend entered a host country, he or she entered into local allegiance to the host. He or she thereby became a subject of the host country, and generally remained one for the duration of the stay.

A resident alien friend “continued to owe allegiance to his natural sovereign, and thus continued as a subject of that sovereign” but enjoyed the protection of the host country: “In England, this included the privilege of the writ of habeas corpus,” Natelson writes.

That is a highly enlightening observation. Our nation is not obliged to afford all aliens the same rights and privileges of American citizens, but we do provide protection to alien friends.

Designation as an alien enemy depended largely on the person’s actions, not his or her country of origin, Natelson notes:

… A person from a friendly foreign nation who participated in a hostile nation’s attack on his host country was an alien enemy of the host country. The fact that he was from a friendly nation didn’t matter. Vaughan’s Case (1696) so held and in Miller v. United States (1870), the Supreme Court endorsed Vaughan’s Case.

… Bad conduct could convert a resident alien friend into an alien enemy, irrespective of his nation of origin. As Emer de Vattel, the Founders’ favorite authority on international law, put it: “Whoever offends the state, injures its rights, disturbs its tranquility, or does it a prejudice in any manner whatsoever, declares himself its enemy, and puts himself in a situation to be justly punished for it.”

Of critical importance to the immigration debate is Natelson’s observation that disobedience of immigration laws automatically made one an alien enemy:

… As Vattel and other international law scholars emphasized, control of national borders was a recognized prerogative of sovereignty. A person who entered a host country illegally—even from a friendly nation—could not qualify as an alien friend, and was, therefore, an alien enemy.

This observation, by the way, disposes of the argument that “No human being is illegal.” Those who want to end illegal immigration and deport those here illegally are at liberty to refer to the latter as “alien enemies.” I’m sure that this slight change in wording will satisfy the proponents of open borders. (Note: that was sarcasm.)

In summary, Natelson writes,

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.

This is an exceedingly useful template for discussion of immigration issues and the rights and privileges granted to aliens in the United States.