The One Alien and Sedition Act Still on the Books

One of the most controversial measures taken by the federal government in its early days were the Alien and Sedition Acts of 1798. The laws expelled alien residents without due process and censored the free press. After the Federalists lost the election of 1800, three of the acts were repealed or allowed to expire. But today, one of the four laws remains in effect.

Congress passed the Alien and Sedition Acts in the context of the 1798 Quasi War. French warships had captured about numerous American merchant ships before Congress rescinded its treaties with France on July 7, 1798. The conflict, which was never formally declared a war, mostly took place in the West Indies.

President John Adams and his Federalist Party, which controlled Congress, sought aggressive action to protect American interests. Thomas Jefferson and his supporters argued for a different solution to the conflict. Four laws passed at the start of the conflict in 1798 as wartime measures came to be known as the Alien and Sedition Acts. The Federalist Congress passed the acts over opposition from the Jeffersonian Republicans.

The Sedition Act, which outlawed printing, uttering, or publishing “any false, scandalous, and malicious writing" about the government, was aimed at censoring and punishing critics of Adams and the Federalist Party. The Naturalization Act of 1798 sought to limit the naturalization—the process of becoming a U.S. citizen by those not born in the United States— of aliens, or non-citizens, while the Alien Act and Alien Enemies Act controlled the status of aliens in the United States. The United States and France settled their conflict in 1800, and three of the four acts expired or were repealed.

The Alien Enemies Act, however, remains in effect today, and it deals with the status of aliens in the United States during a war. The act has not been used since World War II.

The Three Expired Acts

The Naturalization Act of 1798  - June 18, 1798

Congress sets rules for the naturalization of citizenship under Article 1, Section 8, Clause 4 of the Constitution, which reads in part, “the Congress shall have Power … To establish a uniform Rule of Naturalization.” The Naturalization Act of 1798 updated a previous act to expand the residency requirement from five to 14 years, and for eligible aliens to declare their intent to become citizens at least five years in advance. Eligibility for citizenship was limited to free white persons who had good moral character. The Naturalization Act of 1802 replaced this act. It expanded citizenship to certain children of naturalized citizens and to some children of U.S. citizens born outside the United States.

The Alien Act (also known as the Aliens Friends Act) - June 25, 1798

Congress regulates the status of aliens under Article I, Section 8, Clause 18, the Necessary and Proper Clause, which grants Congress the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Under the Alien Act, the president could deport any alien considered “dangerous to the peace and safety of the United States” or conducting “treasonable or secret machinations against the government.” Congress let the act expire in March 1801.

The Sedition Act – July 14, 1798

Unlike the Naturalization Act and the Alien Act, the president and Congress did not have a clear constitutional grant of power for the Sedition Act. The Federalists called the act a “war measure” in the undeclared conflict with France. Section 1 made it illegal for people to “combine or conspire together, with intent to oppose any measure or measures of the government of the United States.” Section 2 forbid “writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States.” Both sections conflicted with the First Amendment’s guarantees of free speech, the free press, and the right of people to assemble and petition the government. The acts proved to be unpopular and a leading cause of John Adams’ defeat in the 1800 presidential election. The Sedition Act was left to expire in 1801.

Acts Still in Effect

The Alien Enemies Act – July 6, 1798

In addition to its grant of powers under the Necessary and Proper Clause, Congress has the exclusive ability to declare a state of war under Article 1, Section 8 of the Constitution.

The Alien Enemies Act goes into effect “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.”

Under the act, the president publicly declares that “all natives, citizens, denizens, or subjects of the hostile nation or government’ may be detained, relocated, or removed from the Unites States as alien enemies.” After the proclamation, the act specifies “it shall be the duty of the several courts of the United States, and of each state, having criminal jurisdiction” to apprehend aliens for court appearances.

The Alien Enemies Act has been used during three conflicts: the War of 1812, World War I and World War II. Whether it could be used outside of a declared war, or against parties other than a nation or foreign government, has been a matter of recent debate since the act’s clear language restricts its use in narrow ways.

The Supreme Court considered a challenge to the Alien Enemies Act in 1948, in Ludecke v. Watkins. A divided court held that President Harry Truman could still take actions under the act shortly after World War II after it had been invoked against a German national, deferring to the political branches regarding whether a state of war between the United States and Germany still existed.

Scott Bomboy is the editor in chief of the National Constitution Center.