Wars end. Bombs remain. In December 2020, the crew of an English fishing boat were pulling in a string of crab pots 22 miles northeast of Cromer when they noticed a tug on the main line. An explosion blew the Galwad-Y-Mor into the air, injuring five crew members, one of whom lost an eye. The cause was a bomb dropped by Nazi Germany three quarters of a century before.
America’s complex tapestry of federal, state and local laws, which has evolved over centuries through legislation, judicial rulings and amendments—a system that includes over 80,000 pages in the U.S. Code and millions of state regulations—contains numerous obscure laws and obsolete case decisions. Like unexploded ordnance from World War II, they lie hidden until they detonate without warning.
A case in point: the Alien Enemies Act of 1798, which grants a president the authority to detain, deport or restrict non-citizens from nations deemed hostile during times of war, or when a foreign government invades the U.S. The Trump Administration revived this ancient law, deemed “outdated and dangerous” by the Brennan Center for Justice, to justify deporting hundreds of Venezuelan men whom the White House calls gang members.
The Supreme Court will soon consider whether or not they buy Trump’s dubious claim that the Tren de Aragua gang is acting on behalf of the Venezuelan nation-state, his tenuous argument that their presence in the U.S. constitutes a military-style “invasion” under the meaning of the statute signed into law by President John Adams, and his sketchy declaration that the men are all gang affiliated, no due process required.
A better question is: why is this law still on the books? The last time it was used was by FDR, who invoked it after Pearl Harbor to round up, detain and deport non-citizens of Japanese, German and Italian descent. While two-thirds of the 120,000 Japanese Americans sent to U.S. concentration camps were American citizens detained under a presidential Executive Order, the Alien Enemies Act was used to imprison law-abiding non-citizens. With such an infamous history of abuse and executive overreach, it’s weird that Congress didn’t repeal the Alien Enemies Act in the 1980s, when the U.S. formally issued apologies and reparation payments to FDR’s internment-camp victims.
Trump is also exploiting the Immigration and Nationality Act (INA) of 1952, a relic of the McCarthy era that includes unconstitutionally vague provisions allowing the government to deport non-citizens for actions it deems to violate the foreign policy interests of the United States, however the government chooses to define it. According to Secretary of State Marco Rubio, fighting anti-Semitism is a core national security policy (that’s new to me and everyone else), protesting in favor of the people of Gaza is tantamount to supporting Hamas, which is anti-Semitic, so supporting Hamas promotes anti-Semitism, so participating in a demonstration against Israel’s war in Gaza is harmful to national security interests. That’s the pretext for ICE’s abductions and attempted deportations of college students Mohsen Mahdawi, Ranjani Srinivasan, and master’s degree graduate Mahmoud Khalil of Columbia University, and Tufts doctoral student Rumeysa Öztürk.
Courts are trying to sort out which, if any, of Trump’s claims hold legal water. Really, though, they shouldn’t have to. Also really: it shouldn’t have been available for Trump to abuse in the first place.
As with the Alien Enemies Act, the INA remains American law after repeatedly being used as a tool of oppression—to deport labor organizers during the Red Scare of the 1950s, prohibit leftist intellectuals from giving speeches under Reagan, deport thousands of Muslims after 9/11, and even to deport HIV/AIDS patients. Its repeal is long overdue.
Other legal landmines abound.
The USA Patriot Act passed after 9/11 expanded government surveillance, allowing warrantless data collection, roving wiretaps and access to personal records under the guise of counterterrorism. As we learned from Edward Snowden, the NSA abused the Patriot Act to collect millions of communications from innocent Americans, yet it remains the law of the land. The Act’s vague definitions (“relevant to an authorized investigation”) and minimal oversight allow government thugs to target political opponents and suppress dissent. The Patriot Act is un-American. It should be shredded.
Civil asset forfeiture laws allow cops to seize your property. All they have to do is claim that they suspect the cash or cars or whatever of being tied to a crime, even if you are never charged or are found not guilty. Federal and state laws place the burden on owners to prove their innocence. It’s well-documented that federal forfeitures totaling $45.7 billion between 2000 and 2019 often targeted low-income individuals unable to fight back. Supreme Court justices have repeatedly expressed skepticism about these statutes, but neither they nor Congress has acted to protect the public. Every time you drive past a policeman, one of those laws lurks like a highway robber, ready to devastate your personal finances in an instant.
Laws with potential for abuse often serve the interests of powerful political forces. The Espionage Act, a 1917 law used against whistleblowers like Daniel Ellsberg, Chelsea Manning and Snowden, remains in force. Both parties have exploited it—Trump prosecuted eight leakers, Biden continued the case against Julian Assange. Suppressing dissent is bipartisan. Civil asset forfeiture is a cash cow.
Periodic attempts at reform, like the piecemeal Law Revision Commission of the 1970s and Congressional Research Service reports, are mostly ignored.
The current system, where laws once passed are nearly impossible to repeal regardless of their flaws, is unworthy of a rational society. Congress and state legislatures should establish permanent standing committees to continuously review old laws for repeal or amendments to modernize them. Similarly, federal and state courts should regularly review case law to flag flawed decisions like the 1944 Korematsu decision in which the Supreme Court upheld FDR’s internment camps for Japanese Americans, and has since been used to justify such outrages as Bush’s extraordinary renditions and Trump’s first-term Muslim travel ban.
Insanely, Korematsu remains in force.
(Ted Rall, the political cartoonist, columnist and graphic novelist, is the author of “What’s Left: Radical Solutions for Radical Problems,” which will be published May 1st. He co-hosts the left-vs-right DMZ America podcast with fellow cartoonist Scott Stantis and The TMI Show with political analyst Manila Chan. Subscribe: tedrall.Substack.com.)
