The U.S. Supreme Court on Friday ordered the Trump administration to facilitate the release of Kilmar Armando Abrego Garcia from an El Salvadoran prison where he is imprisoned after being wrongfully deported because of an “administrative error” – a fact not in dispute.
At the heart of the matter is a 1798 law, one of a set of laws passed at the behest of a president who wanted to silence his critics, including a particular immigrant group – the Irish – whose political values were more closely aligned with his political opponents.
Background
In 1798, when John Adams was the president, Thomas Jefferson was the vice president, and the United States was poised to enter a war with France. The largest immigrant group in America at the time was the Irish, who were a) anti-British and b) pro-republican. Note the republican is with a lower case “r.” That means they supported the idea of a republican form of government. They were, therefore, mostly Republican (upper case “R”) as well, meaning they supported Jefferson’s Democratic-Republican party (today, known as the Democratic party). Adams Federalists leaned more toward a strong central government with a powerful president. He considered the Irish immigrants “transatlantic radicals,” who were trying to stir up trouble in America.
John Adams, America’s first vice president, had been president for two years. He won the 1796 election by one vote, beating out Thomas Jefferson who had served in President Washington’s cabinet as secretary of state. That election, and Jefferson’s machinations to ensure a victory in 1800, were among the factors that resulted in the creation of the first political parties, the Federalists and the Democratic Republicans.
Jefferson’s Democratic Republicans were Francophile republicans, meaning they believed in limited government, citizen virtue, individual rights, France as a major ally and an agrarian way of life for Americans. Adam’s Federalists were nationalists who wanted a strong, centralized government focused on economic growth through industrialization and modernization and Great Britain remain America’s closest ally.
The United States had close ties with both France and Great Britain. Interconnected wars were not the only transatlantic tie that bound the new American republic with Great Britain and France in 1798. Domestic opposition to government policies, which in Great Britain resulted in the United Irishmen rising that year. In America, the Federalists and the Jeffersonian Republican were debating the impact of immigrants fleeing the French Revolution and the rising of the United Irishmen. The end result was the adoption of the Alien and Sedition Acts.
Generally, historians consider the genesis of the Alien Enemies Act to be the X, Y, Z Affair in which France tried to extort bribes from the United States in return an agreement to stop seizing U.S. merchant ships. The result of the French demand was an undeclared conflict known the Quasi-War. But there was another factor as well — President John Adams’ desire to quell growing criticism from Francophile Republicans.
So, if we were mad at the French, why target the Irish?
The crisis with France was a huge factor in the adoption of the Alien Enemies Act, as well as the even more (at the time) troublesome Sedition Act, but so were events in Europe. The republican-oriented United Irishmen led an unsuccessful rising against Great Britain in 1798, and they were allied with the French. Hence, Federalists feared that the Irish in American not only might throw the 1800 election to Jefferson, they might also help the French should they decide to bring the war to American shores.
So, the Alien Enemies act was passed to accomplish several things. One was to give the president the power, during a declared war or enemy invasion of American soil, to create regulations regarding the conduct of nationals of the enemy country, in this case, the Irish because of their alliance with the French.
More than one law
A majority Federalist Congress had passed the Alien Act, the Alien Enemy Act and the Sedition Act in 1798 specifically to address the Franco-Irish problem. Congressman Harrison Gray Otis of Massachusetts said in a speech supporting the bills that he did not want “hordes of wild Irishmen” coming to America and disrupting the country.
The Alien Act empowered the president to deport any non-citizen he perceived as a danger to the United States and would have made more sense for President Trump to use in his work to rid the United States of immigrants. Unfortunately for the president, that law, which provided for no trial, no appeal, has long since been stricken from the books. The Irish were not the only immigrants who would be affected by the law, but they were keenly aware they were the main target.
The Sedition Act was intended to silence anyone opposed to President Adams or who dared criticize him. Thomas Cooper, an English émigré who did a two-week stint as editor of a Pennsylvania newspaper after the Sedition Act passed, wrote a column about how he would handle a matter if he were president, and he ended up in jail with a $400 ($7,498 in 2024 dollars) fine facing him. He was only one of somewhere between 40 and 400 (historians debate this) people arrested under the Sedition Act.
The Alien Enemy Act is the only one of the three still in force today, and it’s the one President Trump reached to fly several plane-loads of people to El Salvador, including Garcia. The Alien Enemy gives the president the power to control the conduct of citizens or nationals of the enemy country. President James Madison used the law during the War of 1812 to compel British nationals to move at least 20 miles from the coast so they could not give aid to the British navy.
Federalists shrugged off public concern about these laws, a lot like is happening now, arguing citizens had little to worry about from the Acts. Only those who committed sedition had anything to worry about from the Sedition Act, and only foreigners needed to be concerned about the Alien Act and the Alien Enemy Act. One newspaper at the time assured Americans that the Alien bill would not pose any hardship for them so long as they were loyal Americans rather than “meddling and intriguing foreigners.” After all, the bill only gave the president power to expel foreigners who were dangerous to the United States – evidenced, in Garcia’s case, by particular tattoos or a Chicago Bears hat.
