SACRAMENTO—The Trump administration has for the fourth time in history invoked the war-time Alien Enemies Act of 1798 even though our nation is not at war—and its last use remains one of the most shameful episodes in American history. That involved President Franklin D. Roosevelt’s Executive Order 9066 in 1942. It was the basis for the internment of around 112,000 people of Japanese descent, 70,000 of whom were American citizens.
The Japanese internment should be of particular interest to Southern California readers, as The Orange County Register (part of this newspaper group) was the only major West Coast publication to oppose the internment as it was taking place. Other California newspapers have since bemoaned the injustice of incarcerating people based on their ethnicity and stripping them of their property. During the time, however, those newspapers often promoted fear of the Japanese.
“It seems that we are remembering, belatedly, that more than two thirds of them are citizens … against whom no charge of disloyalty has been brought,” argued one 1942 Register column. “It seems that throughout the land there is a mounting suspicion that their removal en masse became a ‘military necessity’ only after a carefully managed campaign of hysteria.”
Likewise, the current move to deport alleged alien criminals is driven by hysteria.
For years, we’ve endured constitutional conservatives’ bloviating about the importance of protecting the sacred principles enshrined in our Constitution. Those include the separation of powers—legislative, executive and judicial checks on one another—and due process. Many of these hypocrites are defending the administration’s policies and bashing a judge for halting the hasty airlift of accused criminal aliens to a prison run by a banana-republic strongman—a directive the president promptly ignored.
Perhaps most of these deportees are criminals and a threat (unlike peaceful Japanese residents who posed no threat whatsoever). They still deserve due process—their day in court, so to speak—to prove they have indeed violated the law. Constitutional conservatives of all people should understand that the government gets things wrong and individuals deserve protection from arbitrary actions by its agents.
We’ve already seen examples of immigrants who were deported based on the government allegedly mistaking a soccer tattoo for gang insignia. Let’s say you were walking around and, based on your attire or ethnic background, the police suspected you were a gang-banger and took you to jail. Wouldn’t your first call be to your lawyer? Don’t you deserve due process to prove you were a passerby before being shipped to Pelican Bay? (And non-citizens generally are considered persons under the Constitution—and also deserve due process.)
The administration isn’t just ignoring these constitutional due-process protections but seems to be actively mocking them. “What were all these young women that were killed and raped by members of (Tren de Aragua)—what was their due process?”” asked Tom Homan, director of Immigration and Customs Enforcement.
Murder and rape always are horrific, but everyone still gets a trial to, you know, prove they actually committed the crime. If Homan is correct, then we should dispense with the criminal-court system altogether. Meanwhile, Trump justified invoking the war-time law by describing the nation’s immigration troubles as an invasion. If that’s good enough for you, then any president can with a magic wand—and without congressional approval—describe any problem as a war and then exert nearly limitless powers. Perhaps the next Democratic president can call climate change a war and then just impose the Green New Deal by fiat.
“Oopsie…Too late,” Salvadoran President Nayib Bukele posted on X after the administration claimed it was too late to listen to a judge’s order to stop the plane of deportees after it departed for his prison camp. As an aside, I find it appalling for Americans to savage a judge and our federal courts—and side with a man who, Amnesty International alleges, has used a state of emergency to commit “massive human rights violations, including thousands of arbitrary detentions.”
Savvy defenders of our freedoms—rather than those who throw around “constitutional” as a truncheon to advance their partisan goals—understand that massive expansions of government power always start with cases that draw few objections. No normal person is sympathetic to violent Venezuelan gang members, but once due process is ignored and everyone laughs at panty-waist judges, then the die is cast for other types of roundups and extrajudicial actions.
Forty-six years after Executive Order 9066, President Ronald Reagan signed a law providing restitution to victims of the Japanese internment: “What is most important in this bill has less to do with property than with honor. For here we admit a wrong; here we reaffirm our commitment as a nation to equal justice under the law.” Instead of issuing an apology in decades, perhaps our government can do the honorable thing now and uphold the principles of due process.
Steven Greenhut is Western region director for the R Street Institute and a member of the Southern California News Group Editorial Board. Write to him at sgreenhut@rstreet.org.