Early Saturday morning, the Supreme Court blocked the Trump administration from removing migrants to prisons in El Salvador without due process. The justification for sudden deportations into nightmare conditions was cooked up by appealing to the Alien Enemies Act, a vestige of a late-18th-century political conflict between President John Adams and his rival Thomas Jefferson. More widely, it was a conflict between their political parties, the Federalists and the Democrat-Republicans. The Federalists were busy reconciling with the British crown, while the Jeffersonians were importing ideas from revolutionary France. Adams wanted French people deported and French ideas repressed: the original red scare.
The form of government just established in the Constitution had to be revoked by legislation in the Alien and Sedition Acts, the Federalists may well have argued, as nothing is more subversive of public order than baguettes and a milieu of excessive vowels.
Meanwhile, Kristi Noem and Pete Hegseth seem set to make the determination that an insurrection is underway at the southern border. Originating in 1792, the Insurrection Act permits the president to deploy the armed forces domestically in cases such as the Whiskey Rebellion, in which corn farmers in rural Pennsylvania were stringing up tax collectors. (After Alexander Hamilton proposed that the federal government could be funded entirely by "sin taxes" on products like whiskey, he led the US Army out toward Pittsburgh.)
The United States isn’t, right now, at war (as required by the Alien Enemies Act), much less under invasion, and there’s no insurrection currently underway, not even to the extent that Black Lives Matter or January 6 could’ve been interpreted that way.
But there are no limits to the figurative invasions we’re undergoing or the moral equivalents of war: these swarm like spring mosquitos. We’re at war with cancer, mental illness, declining test scores, fear itself, climate change, and so on. We’re under invasion from microbes, mediocrity, morbid thoughts. I fear that we can no longer plausibly agree with Adams that we’re under invasion from the French, but we certainly are still and always at war with French insurrectionists, in an extended or metaphorical sense.
We’re in various "wars." We’re not under invasion; we’re "under invasion." We’re not in an emergency; we are in an "emergency." There’s no law against metaphors, or manipulative misuse of words. But as senses and applications multiply, restrictions on and violations of rights do likewise.
There has been no time in American history, by the current standards of the Trump administration, in which we’ve not been at war and in the middle of an insurrection, never a moment when "alien terrorists" haven't presented a threat. There’s been no time in history in which a president couldn’t have invoked all these exceptions and emergency powers as plausibly as Trump’s doing now. The right to violate the Constitution, fundamentally and continuously, in any and every respect, was seemingly always inherent in the powers of the presidency.
That is, the form of the government of the United States has never been what it purports to be. It has never been the form of government described in the Constitution. That’s a kind of comforting surface appearance. The real form of the government of the United States is executive dictatorship, in which expression can be widely repressed, people rounded up and interned without any vestige of due process, or in which people can be removed, without recourse, to prisons in which bodies are stacked as though in the holds of slave ships on the middle passage.
It’s extremely encouraging that the courts are putting limits to the administration's actions, though one wonders, when push comes to shove, who controls the military. But if the Supreme Court is going to intervene or save the vestiges of the Constitution, it’s going to have to do things a lot more profound than issue temporary injunctions and restraining orders. For example, it is going to have to grapple with the constitutionality of emergency powers such as those enshrined in the Alien Enemies and Insurrection acts.
They’ll need to strongly distinguish literal from figurative uses of terms such as “war” and “invasion.” (This fairly rudimentary skill is necessary on both sides. For example, the academic left has taken in recent years to referring to things like wearing the wrong Halloween costume as "violence," potentially making every non-Mexican who dons a sombrero guilty of assaulting millions of people. I picture President AOC deploying the military in 2030 to defeat the violence of "cultural appropriation.")
And they’ll have to wade into one of the real hornet nests of constitutional law: the status of the laws purporting to authorize the president to suspend the Constitution, which is exactly what Trump & co. are doing in multiple dimensions right now. Offhand, I’d say that the Constitution strongly supersedes those laws and makes them invalid. That is, a bill in the legislature, passed by a majority, can’t supersede the document by which that legislature was established. The Alien Enemies and Insurrection acts are plainly and explicitly unconstitutional and should be rejected.
But more likely, and more in line with the sort of thing that Supreme Court justices may be good at, they need to tighten and clarify definitions of all the key terms. These aspiring oppressors and enders of the American form of government are throwing words around in an intolerably loose and incompetent manner.
—Follow Crispin Sartwell on X: @CrispinSartwell