Bulwark Takes - Trump Thinks It’s 1798: Could the Alien & Sedition Act Return?

Episode Date: March 14, 2025

Could Trump really bring back the Alien & Sedition Act from 1798? His latest immigration crackdown might be even more extreme than you think. Watch Adrian, Andrew, and Mona discuss Trump’s claims of an ‘invasion’ and how his immigration policies could spiral out of control.

Hi, I'm Andrew Egger. Welcome to The Bulwark. Donald Trump has really been escalating in kind of a dramatic way his attempts to move the country toward mass deportation. He's taking some pretty striking specific enforcement decisions this week, and he is reportedly moving in the direction of invoking some very broad new deportation powers in the days to come. I'm joined today to talk about all of that with Adrienne Caraschio, who is our immigration reporter, writes our new newsletter, Huddled Masses, as well as Mona Sharon, who has written about some of this stuff this week as well. Thanks, guys, for coming on. Pleasure.

So, Adrienne, let me just start with you, because obviously the big name that's been in the news and all this this week is Mahmoud Khalil, who is this Columbia University grad student. He was involved with organizing a lot of the protests against Israel's war in Gaza over the last year or so. And he has essentially been disappeared by the Trump administration on very spurious pretexts for this. So can you just kind of get people up to speed on where that story stands right now? Yeah. Mahmoud Khalil was taken from Columbia University and first sent to New Jersey to a center there and then immediately spirited to Louisiana, which is actually an extremely notorious ICE detention center in Louisiana. And so, of course, there's all these, you know, free speech, First Amendment questions, which we will get into. I think, as I was reading Mona's piece, I thought others might not see it, but I thought that she sort of, where she ended is where I began.

She wrote, you know, we defend his rights because if his are not secure, neither are ours, which is basically where I begin. And I have a lot of immigration activists talking to me about, you know, not saying I told you so in some sort of chastising way, but saying we've been saying from the beginning that immigration is the tip of the spear for these kinds of things. And first they start with undocumented immigrants. Now they're going for somebody who has a green card. And then next, U.S. citizens is not far fetched. That's the kind of thing that we hear that we're like, oh, come on. But there was a Trump supporting a Hispanic man who was a pro who's a U.S. citizen who was approached by ICE with guns drawn. And there was this big NBC News story about it. So it's, again, people questioning, you know, we have these rights. What's going on? What's the government doing? And just in this sort of slapdash way to achieve their mass deportation dream. Yeah, yeah. Mona, and I wanted to ask you about your piece, because I think it's, it's, there is something kind of like cunning about the way the Trump administration is going about this, right? They're kind of, they're, they're picking on targets that they think will be popular targets right off the bat, in order to kind of like, chip away at some of these, some of these, you know, bulwarks of protection that citizens, permanent residents, that people living in America enjoy. Can you just talk a little bit about your piece about why Donald Trump has gone after this guy in particular, and why you're unconvinced by

essentially their argument that like, ah, you know, this is one of the bad guys. Yeah. So, look, when authoritarians go after dissent, they're not going to pick on the most popular person at first, right? They're going to soften you up by going after somebody that's very unappealing and unpopular. They're not going to go after Taylor Swift because she endorsed Kamala Harris, okay. They're going after a guy who I said very frankly in my piece is somebody that he could have been cooked up in a lab as far as I'm concerned in terms of how much he offends and appalls me with his views. Actually, one of you said a few minutes ago that this group, Columbia Against Apartheid Divest, which is the name of the umbrella group that he was a part of, that they were protesting Israel's Gaza war. Actually, no, they weren't. They came out in favor of October 7th on October 9th, and 8th and 9th. So before the Israelis even responded,

they were already cheering on Hamas. Okay, really bad,rehensible speech. But this person has a green card. He is, he is, then we bestowed on him almost all of the rights of an American citizen. And one of the most sacred rights of an American citizen is the right to say obnoxious things, the right to say unpopular things, the right to be wrong, without fearing that somebody is going to knock on your door. And when you've got an eight months pregnant American, by the way, wife is sitting in the apartment, drag you off in handcuffs and take you to some black site in Louisiana. All right, it's not a black site, but to some detention facility, because you've said things that are unappealing to a lot of people, even arguably, you know, supporting terrorism. He did not do anything illegal. He did not give material support to

terrorists, as far as we know, and the government isn't even claiming that. They're just saying, this is the kind of person we don't like, and we're going to show that we can kick them out of the country. And so Adrian's absolutely right. It is a flagrant assault on American liberties. And, uh, it is, um, you know, it, it deserves everybody to get up on their hind legs and say, yep, we have to defend this very unappealing guy. I mean, I don't know what he's like personally, his views are very unappealing. Um, because if his rights are not protected, all of our rights are in danger. Yeah.

Yeah. To me, that has been one of the most staggering things about all of this is that when the Trump administration has had surrogates, you know, go on TV or sit for interviews to defend this, they have almost gone out of their way to avoid, or I guess what I should say is they've been very deliberate about saying that they're not charging him with a crime. They're not alleging a specific violation of the law. Because what they're really trying to do is defend this maximalist posture where any non-citizen, they think they're now maintaining that they have the ability to just kind of arbitrarily pluck them out and say, well, we see you as having defended terrorism. We see you as having stuck up for terrorism.

And we think that under the law, we have the ability then to grab you and deport you. You know, the law in this case is a bit murky because there is this loophole which says that if the Secretary of State, that basically it says you should never deport somebody with a green card for their opinions, except if the Secretary of State certifies that this particular person would represent a serious threat, or I forget the exact words in the statute, but would represent a severe threat to American foreign policy. And, you know, it is perfectly possible that Marco Rubio will say that. And then we're in the position with this particular case, we're in the position where courts tend to defer to administrations on matters of foreign

policy. And so here, you're going to get a loophole where, you know, he could actually be in serious, at serious risk of deportation because of that particular loophole in this case. But we have to bear in mind that this, again, I'm just going to, you know, draw a dark line under what Adrian said, because it isn't just this. It is an assault on the rights of Americans across the board. So for example, look at what the administration is doing to Perkins Coie. This is a law firm that represented Hillary Clinton and that hired Fusion GPS. So Trump has been bearing a grudge against this firm all this time, and now he's using the power of the state to basically crush this law firm

and put it out of business by saying that anybody who hires Perkins Coie cannot have business with the federal government. Anybody who is a lawyer with Perkins Coie can't enter a federal building. You know, that is an attempt, clear, to put a private business, to put them out of business, because they've offended the king. And that, that's authoritarianism right there, if it stands but because it's been kind of nebulous, there haven't really been any specific flashpoints of controversy about it. It's been a little hard for these pro-immigrant groups to know really how to organize against it. And you wrote a little bit about how this particular, this Mahmoud Khalil case,

may prove to be kind of a flashpoint for them in terms of finding that place to take their fight. I think that from the beginning, it's sort of playing a little bit of whack-a-mole with so many different cases going on, so many different types of flagrant attacks on the Constitution, things like that. I talked to Joaquin Castro, a Democrat in San Antonio, and he told me, if you can do this to a guy with a green card, what's going to stop them from getting a legal permanent resident and saying that in Texas and saying that they are aligned with the cartel? Again, this is what we're talking about, right? There's no evidence. There's no formal charge of a crime. And I think if you tie that to what else has been happening on mass deportation from the beginning, it's this effort to show that none of this stuff matters. Your green card doesn't matter. Oh, you're here legally as a refugee and you came from a war-torn country.

That doesn't matter. They're canceling all this stuff from the beginning, right? And that's been part of the administration's posture, the President Stephen Miller, their worldview. And so as you challenge these things, I've talked to these legal groups that are in this constellation of advocacy groups. And, you know, they're trying to fight as many of these things as possible. And as we're seeing, a lot of them are getting through and causing trouble for a lot of people. So let me move real quick from this specific case to what, you know, reporting suggests is likely coming next. Let me just quote you, quote to you from a CNN headline this morning. The Trump administration is expected to invoke a sweeping wartime authority to speed up the president's mass deportation pledge in the

coming days. The little known 18th century law, the Alien Enemies Act of 1798, gives the president tremendous authority to target and remove undocumented immigrants. The legal experts have argued it would face an uphill battle in court. The law is designed to be invoked if the U.S. is at war with another country or a foreign nation has invaded the U.S. or threatened to do so. And this is a thing, I mean, like we've had these conversations for years and years about the MAGA movement's rhetoric about invasion, right? That talking about, you know, migrant caravans coming to the border or just the fact of people crossing the southern border at all being an invasion. And a lot of that has, we've tended to chalk it up to basically just overheated rhetoric

and kind of scaremongering. But in this case, I mean, it might end up really becoming like a sort of legal flashpoint as to whether they're able to invoke this law as, as, as, again, reporting suggests they're moving toward doing Adrian, what do you make of all this? I've read about this from the beginning. And it's so interesting, because we are talking about invasion rhetoric. We've seen that in Texas, we've seen that with Greg Abbott, we've seen that a lot of places, but literally Trump on day one made it US government decree that we are under invasion as part of his executive orders. That unlocks for him the national emergency that he declared, unlocked for him the ability to bring, for example, military soldiers to the border to deal with what he's saying is, even though the New York Times two days before he's inaugurated wrote, the border is pretty quiet.

But, you know, so he's saying that we're under assault. This is very similar. And where I want to zag is this is a big deal. And we definitely need to be covering it. We definitely need to be watching. You know, this this is what led to, you know, Japanese, Italian, Germans being in internment camps during World War Two. OK, so this is serious where I think what is overlooked is Trump is really good at like mastering a news cycle and taking control of a news cycle. I wrote about this in one of my first newsletters when he was sworn in, where he's basically saying we can use this, you know, alien enemies act to track down these Venezuelan gang members. No one is on the side of Venezuelan gang members. If they're in this country, you're going

to say, yeah, great. This is cool. Do that. Where he gets away with it is that act is supposed to be declared against a country. You're not declaring it against. Who are you declaring it against? You know. So this is, again, where they just use these. I mean, this loss from 1798. Right. They just use these things that are not meant for this at all to say. And, you know, one of the things I've written about is, yes, gang members, bad. Every American can agree. But it's actually an overblown threat. And it's part of his border fantasy to make it so scary and such a big deal that when you when Americans hear this while they're getting ready for work and taking care of their kids, they're like, yeah, I support that sounds good. You know, and meanwhile, we're seeing what this could lead to. Yeah, yeah. Can I jump in, Andrew? So, um, yeah, the average American might have that reaction.

But the fact is, this is going straight to the courts, and it is going to wind up at the Supreme Court, where this will be such a clear test of integrity for the conservatives. Because what are they? They are originalists and textualists. And if you're a textualist, you have to look at the words in the law and say, is it even remotely the same thing to say that when immigrants are coming across the border and when tanks are coming across a border, it's the same thing. It's an invasion. You know, they're going to say, well, hang on, no, you're stretching the meaning of this term to such an absurd degree that it cannot be supported. If they have integrity, that's what

they'll say. And, you know, it's such an absurd suggestion that because we have more immigrants than we can handle, in theory, that this represents a wartime threat like an invading army. I'm sorry. It's just it's apples and oranges. It's ridiculous. and you know the um the i keep saying sorry to repeat myself but the great question of our time is how will the courts rule and if they rule against him will he abide will this administration abide by court rulings that's the ball game because if they don't then we are truly losing our republic. And I don't know how it's going to go. I'm not making a prediction. But they are, this is a, this is the kind of thing that is squarely unconstitutional, anti-law, anti-rule of law. And, you know, this, these are the kinds of

issues where, you know, the fate of the country, I'm sorry, I mean, I don't want to be melodramatic, but the fate of our democratic republic rests on how these issues are going to get resolved. things that I find so frustrating about all of this is that when Trump was president before, he took this very maximalist reading of presidential emergency powers. He would, he was invoking them for all kinds of sort of pretextual reasons where everyone was like, oh man, can he, can he do that? Can he actually do it? And most of the time the answer was, yeah. I mean, the president has enormous latitude when he evokes emergency powers to do all kinds of things he wouldn't be able to if he, he wouldn't be able to do if he were not invoking those powers and there really are no like like hard and fast uh uh you know legal checks on when he can and can't do that i mean so i would disagree with that actually i would disagree a little bit with the um there are no uh there's no way to push back the fact fact is, he does have a lot of authority.

He has way more than he should, partly because Congress keeps giving it to him. But this during the first term, Trump was was pushed. Trump, the courts went against him more than any other president. And he lost most of the cases, and he did abide by court rulings in the first administration. And don't get me wrong. I'm not disagreeing with what you were saying a minute ago at all. I do think that there is a serious, at the very least, we should hope that the courts will will strongly check him here. The thing that frustrates me is just that because we saw this all happen in the first term, you could have seen, you know, Congress under President Biden move to kind of curtail some of those emergency powers. There actually were some movements during during Biden's term to do it. And instead of and I mean, this is just yet another kind of extra grind against President Biden, I guess. But but instead of like supporting those efforts and kind of closing that door in a way that would have made it harder for Trump now, Biden instead kind of availed himself of some of the same sorts of things, which is a small part of the reason why we're why we are where we are now.

A small part of that is, you know, that's an excellent point. And it really was a disastrous missed opportunity. I mean, they could have, they could have, you know, done many things to diminish the president's authority, they could have reduced drastically his ability to impose tariffs, for example, which is mostly statutory, it doesn't come from the Constitution at all. And, but, but they didn't, there was one thing they did the Electoral Count Reform Act, which was good, but there should have been that should have been the whole focus, honestly, of the first two years of the Biden administration should have been, you know, paring back the powers of the presidency, because it was clear that we were now living in an era when they were being abused. But of course, that didn't suit Biden. He wanted to abuse those powers to to a degree, obviously not to the same extent as Trump, but he also stretched his authority. Yeah, yeah. And yes, I mean, like, to be very clear, not not along the lines of the stuff that we are seeing today, which is just so far so far beyond the pale.

Okay, I think we can I think we can leave it there. Thank you guys for coming on to talk about all this stuff. We'll obviously keep following it, and we'll be back on here to talk about it in the days ahead. Thanks to you all as well for watching, for following, for subscribing, for doing all the YouTube things you do. Thanks, and we'll see you again soon.