In 1798, as the United States was embroiled in the undeclared Quasi-War with Revolutionary France, President John Adams and his Federalist party used their congressional mandate to pass a set of four laws collectively known as the Alien and Sedition Acts. One of the four laws, the Alien Enemies Act, allowed Adams to detain and deport noncitizen residents from foreign nations in times of hostility. In particular, the act targeted French revolutionaries, whom the Federalists perceived as potentially destabilizing to the developing political institutions of the nascent republic. While the three other acts (the Alien Friends Act, the Sedition Act, and the Naturalization Act of 1798) were repealed, replaced, or expired when Adams lost the White House to Thomas Jefferson in the 1800 election, the Alien Enemies Act remains in force even today.
When the act reappeared in public discourse in 2025, two hundred and twenty-seven years after its original passage, there seemed to be significant questions over how the president had become endowed with such a significant power. And what exactly was an “alien enemy” in the first place? Examining the historical and partisan context of the Alien Enemies Act of 1798 through the divisive congressional debates reveals core arguments over federal authority over migration and the extent of executive power, which provide important context for present-day debates.
Who is an “alien”?
To understand the historical framework of the Alien Enemies Act, it is first important to understand the eighteenth-century conception of alienage. In 1769, William Blackstone published his monumental legal work, Commentaries on the Laws of England, detailing British Common Law’s approach to subjecthood, denizenship, and alienage. A subject, according to Blackstone, was born within the dominion of the British monarch and by the fact of their birth was endowed with a natural allegiance toward the authority of the monarch “in return for that protection which the king affords the subject.” In contrast to the perpetual allegiance of the subject-by-birth, an alien was merely passing through the monarch’s dominion and thus owed the monarch what Blackstone called a “local allegiance” for protection during the alien’s stay. The alien’s perpetual allegiance still lay with the monarch who presided over the dominion of their birth. With this understanding, in the case of a conflict between the nation where the alien resided and the alien’s home nation, it was only proper they swore loyalty to the latter, thus becoming an alien enemy.
The United States did break from British Common Law and understandings of monarchical subjecthood in the aftermath of the American Revolution, replacing it with the concept of volitional citizenship, centering on the idea that perpetual allegiance did not exist. Rather, as part of a broader social compact, individuals were guaranteed a right of expatriation. This distinction would later become a flashpoint between the United States and Britain during the lead-up to the War of 1812, centering on debates over impressment, or the forcible taking of American sailors by the Royal Navy. However, in lieu of fealty to a monarch, Americans owed, according to American jurist James Kent in his 1794 lectures at what is now called Columbia University (later collected into his Commentaries on American Law), fealty to the new “chief lord of the fee, or, in other words the people.”
By the mid-1790s, alien enemies appeared in American political debates, chiefly as a consequence of the development of the nation’s first political parties and the escalation of the French Revolution. In 1796, after George Washington decided to retire from the presidency at the conclusion of his second term, the nation’s third presidential election pitted John Adams (Washington’s vice president) against Thomas Jefferson (Washington’s onetime secretary of state). Adams and Jefferson represented different visions for the nation’s future. Adams and the Federalists sought to align more closely with Britain and develop a commercial economy based on a broad variety of “manufactures,” and were wary of the growing clamor for broad participation in democracy. Meanwhile, Thomas Jefferson and the Democratic-Republicans argued for aligning more closely with France, advocated for an agrarian-based economy with limited production of “necessities,” and embraced a broader, but still limited, conception of political participation that eventually resulted in the early nineteenth-century expansion of universal white male suffrage.
Adams and the Federalists prevailed in the election of 1796. However, the administration was bedeviled by the gyrations of France in the latter stages of its revolution, causing increasing diplomatic tensions. In the later months of 1797 and early months of 1798, the tenuous hold of the Federalists on their political power was strengthened by the XYZ Affair, a diplomatic scandal. In exchange for opening diplomatic talks, French agents had demanded bribes from American negotiators. The perceived affront sparked public outrage, fueling calls for military action against France, the aforementioned Quasi-War. Against this backdrop of jingoistic hysteria, the Federalist-controlled Congress passed the Alien and Sedition Acts in 1798, arguing that foreign agents and subversive elements within the United States posed a grave threat to national security. An act regulating alien enemies would protect the United States from potential French designs.
Partisan battle lines
When, in early 1798, the Alien Enemies Act appeared in Congress amid the fallout of the XYZ Affair and jingoistic sentiment, there were two significant points of debate between the Federalists and their Democratic-Republican opposition. The first argument was whether Congress had the constitutional right to pass an Alien Enemies Act in the first place. The Constitution does not provide much guidance regarding federal power over migration. The second line of argument appeared when Democratic-Republicans expressed concerns that the act granted President Adams too broad an authority to enact removals.
Albert Gallatin, a Democratic-Republican Representative from Pennsylvania, who was naturalized in 1785 as an immigrant from the Republic of Geneva, took the lead in arguing against the act entirely, painting it as an overstep of federal authority. Gallatin pointed out that the removal of aliens from the United States was not among the “powers vested in the General Government.” Additionally, the Constitution “provides that powers not delegated by it to the United States are reserved to the States.” Thus, he argued, “the power over aliens” must reside in the individual states.
Samuel Sewall, a Federalist representative from Massachusetts, disagreed, arguing that a federal “power over aliens” could be derived from the power of Congress to regulate commerce. Sewall’s argument that migration regulation fell within the bounds of the commerce power was quite popular rhetoric throughout the eighteenth century. Political economists such as Adam Smith and Thomas Malthus espoused a heavy emphasis on population. Meanwhile, the Migration or Importation Clause of the US Constitution itself, to avoid the words “slave” or “slavery,” resorted to the awkward phrasing “migration or importation of such persons as any of the States now existing shall think proper to admit” —binding together, in the minds of many throughout the early Republic, the trade in goods and the movement of people.
Gallatin argued that masquerading the Alien Enemies Act as a commercial measure was abhorrent, as the act was “wholly of a political nature, intended to effect political ends, and did not relate to aliens as merchants.” Federalist Representative William Gordon of New Hampshire argued that the United States had the right to “withdraw their protection to aliens whenever they thought proper” deriving from the power of “making war; and providing for the general welfare.” According to Gordon, if the United States were “filled with the natives of an enemy country,” in that case “do we not possess the power to send them out?” After all, Gordon pointed out, Congress had already loosely interpreted the Constitution a few years before to justify the establishment of a national bank. Why could the same not happen now? Despite Gallatin’s attempts to address each of these concerns in turn, he failed to carry the day.
The second argument was over the vesting of the power of removal of alien enemies with the president. Democratic-Republican Edward Livingston of New York often repeated the strong objection that the act “confounded the fundamental powers of government” and threatened to “subvert the basis on which our liberties rest.” By the Alien Enemies Act “the president alone is empowered” to detain and deport those he deems threatening to the United States. The president “judges and executes by proxy.” How was this not despotism?
Sewall, one of the act’s most ardent defenders, explained that it should not be considered a general power of the presidency, but rather a constrained power granted within the limits and safeguards of the bill. Sewall also pointed out, quite practically, that the power had to reside somewhere, and the president was as good a place as any. Partisan sentiment surely influenced his line of argument, much to the chagrin of the Democratic-Republicans. A mocking letter, composed in June 1798 for the Democratic-Republican-leaning newspaper Carey’s United States’ Recorder by a writer using the pseudonym Democritus, addressed “His Serene Highness John Adams,” noting that “A war will give you bounded power over alien enemies” and “every increase of power is an increase of privilege.” If Jefferson had won the 1796 presidential election, Sewall would surely have been less willing to give such sweeping powers to the president. When the act as a whole came up for a vote, it passed on largely party lines, forty-six to forty.
Still seeking consensus
Eventually, the backlash to the Alien and Sedition Act, which broad swathes of the American public viewed as partisan overreach of federal authority, swept the Democratic-Republicans to success in the following election. In September 1800, the Carolina Gazette published the ninth part of a series On the Election of a President to the United States, in which “A Republican” bemoaned the Alien Enemies Act granting the president “unexampled power of acting from his own will or caprice, from secret and perhaps false accusations” which may “establish distinctions” between “persons born out of the country” and “those born in it,” leading to “most serious divisions.”
Upon assuming control of the federal government, the Democratic-Republicans moved to revise or repeal the Alien Friends Act, Sedition Act, and Naturalization Act of 1798. However, the Alien Enemies Act remained. Perhaps, despite its contentious origins, the act addressed more base concerns over national security amid a turbulent Atlantic world in the Age of Revolutions. While the Alien Enemies Act of 1798 was shaped by the nation’s nascent partisan competition, heightened transatlantic tensions, and ill-formed political and legal institutions, the debates surrounding its passage reflect concerns beyond the early Republic.
The arguments of Gallatin, Sewall, and others over migration policy, national security, and the limits of federal authority reappear throughout contemporary migration discussions, from deportations to sanctuary cities. The battles of 1798 continue.
