I. Introduction
“Unprecedented” has become the signature word of the immigration debate.1 Commentators have used it to describe the expansion of Immigration and Customs Enforcement (ICE) as a rupture in American history with no legal standing. While common, this framing simplifies the legal justification behind current enforcement methods. Today’s tactics may be larger in scope, but they draw on centuries of precedent. Through the Alien Enemies Act, plenary power doctrine, and the Supreme Court’s 2025 order in Noem v. Vasquez Perdomo, the President has routinely asserted broad authority over non-citizens, while the courts have largely deferred. The expansion of immigration enforcement rests on this political legacy, and efforts to limit its excesses should begin by reviewing its precedents, rather than condemning its novelty.
II. The Enemy Within: The Alien Enemies Act
Emergency powers have routinely strong-armed judicial review. The Alien Enemies Act of 1798 is one such example. Passed amid fears of war with France, the Act allows the President, upon ‘invasion’ or ‘predatory incursion’ by a foreign government, to detain or remove non-citizens from the invading nation. The trigger is a presidential proclamation, meaning the Act permits detention and removal without individualized findings of guilt.2 The Alien Enemies Act has been invoked in 1812, both World Wars, and, most recently, by President Trump.3 The Act is the only surviving piece of the Alien and Sedition Acts, which also included the Naturalization Act, Alien Friends Act, and Sedition Act. The Naturalization Act nearly tripled the number of years required for an immigrant to receive citizenship, while the Sedition Act punished American citizens who authored “false, scandalous, and malicious writing” against the government. These measures forced oppositional outlets to self-censor, fined and arrested everyday citizens, and prompted French nationals to flee.4
III. The Doctrine of Deference: Plenary Power
The Constitution does not grant the executive unlimited power. In immigration, however, courts have largely removed themselves from that role through the plenary power doctrine, which grants Congress and the Presidency broad authority over immigration – narrowing the scope of judicial review.5 In Chae Chan Ping v. United States (1889), the Supreme Court unanimously upheld the Scott Act of 1888. The Act, an amendment to the Chinese Exclusion Act, voided the reentry certificates that had allowed Chinese laborers to return after traveling abroad. The rationale behind the decision was that “[i]t seemed impossible for [Chinese laborers] to assimilate with our people” and that “the legislative department can exclude aliens from its territory.” Writing for the Court, Justice Stephen J. Field described Chinese immigration as an “Oriental invasion.” In effect, the Supreme Court borrowed the vocabulary of war to justify peacetime exclusion efforts.6
Fong Yue Ting v. United States (1893) extended the doctrine to immigration writ large.7 The Court reasoned that non-citizens did not hold the same Constitutional protections as citizens and allowed the federal government plenary power to remove foreign nationals without a trial. In doing so, the Court treated the power to expel immigrants as an inherent attribute of sovereignty, rather than a wartime necessity.8 The logic of Fong Yue Ting reappeared during the Great Depression. At its height, an estimated 350,000 to 2 million people of Mexican descent, most of them U.S. citizens, were pressured or forced to leave the country in one of the largest mass removals in American history. The judiciary offered little resistance.9
IV. Common Sense, Uncommon Discretion
The legal precedents of old now protect the enforcement methods seen today. On September 8, 2025, in Noem v. Vasquez Perdomo, the Supreme Court, acting on its emergency docket, allowed immigration agents to consider factors such as their appearance, type of employment, English proficiency, and location of residence when forming reasonable suspicion. Critics describe the ruling as legitimizing racial profiling. Justice Kavanaugh disagrees, writing in his concurrence:
Under this Court’s precedents, not to mention common sense, those circumstances taken together can constitute at least reasonable suspicion of illegal presence in the United States.
Reasonable suspicion is a low threshold, and “common sense” has little-to-no fixed definition, meaning the standard depends heavily on an agent’s judgment. That discretion can expose both citizens and non-citizens to questioning based on mere intuition.10 This decision follows the pattern of Chae Chan Ping and Fong Yue Ting and should not be seen as a lone incident.
V. Conclusion
The term “unprecedented” fails not because modern enforcement is justifiable, but because it implies novelty. French, Chinese, and Mexican communities have each faced racialized exclusion backed by legal precedent, and today’s immigrants face a similar pattern. To ignore our history would be revisionist, and to build a future without acknowledgement would be imprudent. The path forward is, therefore, common sense: statutory limits on emergency authority, meaningful judicial review of immigration status, and required Fourth Amendment protections for all persons in the United States. If we wish to build a future beyond excess, we must recognize and reject the legal precedents that sustain it.
Footnotes 1 Trump administration asks Supreme Court to OK its unprecedented immigration detention policy, Politico, https://www.politico.com/news/2026/06/26/trump-ice-detention-supreme-court-00978482 (last visited Oct. 18, 2026). 2 50 U.S.C. § 21-24 (2025) 3 Proclamation No. 10903 90 C.F.R. 13033 (2025) 4 Alien and Sedition Acts (1798), National Archives, https://www.archives.gov/milestone-documents/alien-and-sedition-acts (last visited Oct. 12, 2026); The Alien and Sedition Acts, PBS, https://www.pbs.org/wgbh/americanexperience/features/adams-alien-and-seditions-act/ (last visited Oct. 12, 2026). 5 Trillium Chang, The Chinese Exclusion Cases and Policing in the Fourth Amendment–Free Zone, 73, Stan. L. Rev. 209, 210 (2021). 6 Chae Chan Ping v. United States, 130 U.S. 581, 595 (1889). 7 Fong Yue Ting v. United States, 149 U.S. 698 (1893). 8 Trillium Chang, The Chinese Exclusion Cases and Policing in the Fourth Amendment–Free Zone, 73, Stan. L. Rev. 209, 211 (2021). 9 Time Staff, 1930s: Repatriation of Mexicans - Ana Minian, Stan. Univ. Dep’t of Hist (Jun. 25, 2020), https://history.stanford.edu/news/1930s-repatriation-mexicans-ana-minian; 10 Noem v. Vasquez Perdomo, 606 U.S. ___, No. 25A169 (Sept. 8, 2025) (mem.).