People’s Republic of China officials openly proclaim that armed conflict with the United States is inevitable and have been assiduously pursuing the goal of military superiority over the U.S. to be able to prevail over us in a war. Perversely, our nation’s student visa policy aids and abets the Chinese government’s pursuit. 

Two years ago, I wrote in the Washington Examiner that China sends aloft thousands of spy balloons to hover over American universities, doing far more damage to our national security than the balloon we finally shot down. Curtailing the damage done to our national security by the presence of hundreds of thousands of PRC students on our college campuses will likely require recourse to the Alien Enemies Act.

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President Donald Trump concluded in 2020 that China “is engaged in a wide-ranging … campaign to acquire sensitive [U.S.] technologies”, using “some Chinese students, mostly postgraduate students and post-doctorate researchers”. The U.S.-China Economic and Security Review Commission has declared that “overseas Chinese students and scholars are key to [the PRC’s] plans to transform China into a … militarily formidable world power”. Then FBI Director Christopher Wray said in 2019 that China “has pioneered a societal approach to stealing innovation any way it can”, including “through graduate students and researchers”. A State Department official has testified that many Chinese students coming here with no ill intent are “later co-opted to work” as “non-traditional” intelligence gatherers. To achieve these ends, China utilizes promises of career advancement, not-so-veiled threats to families back home, and appeals to ethnic solidarity.

In the 2023-2024 academic year, 277,398 Chinese students in the U.S. amounted to a quarter of the entire foreign student population in the U.S., with more than half studying in engineering, computer science, and other STEM fields, and graduate students outnumbering undergraduates by 40%.

I have said we need to at least consider barring the entry of all Chinese college students, or at least STEM students. But what of the hundreds of thousands already here, most of whom can keep their student visas for as many years as they pursue a full course of study? Even those who stay without permission generally cannot be removed until going through an immigration court system backlogged with 3.6 million cases.

There is only one workable legal mechanism to remove large numbers of students from China — the Alien Enemies Act. For over two hundred years, it has given presidents the power to summarily remove nationals of enemy nations. It remains the law of the land, having been blessed as constitutional by the Supreme Court multiple times. 

To use the AEA, a president must meet its prerequisites — a declared war or an “invasion or predatory incursion … against [U.S.] territory” by a “foreign nation or government”. Obviously, should a Chinese invasion of Taiwan lead to a declared war, the AEA is available. But I would also contend that China’s pillage and plunder of U.S. universities can easily be characterized as a predatory incursion. 

A predatory incursion is roughly equivalent to a raid. Dictionaries from 1864 and 1911 defined a “raid” as a “predatory incursion” and as “a hostile or predatory incursion”. Of course, the Trump administration is currently attempting to remove members of the violent Venezuelan criminal cartel Tren de Aragua through the AEA, contending that TdA, in league with the Venezuelan regime, is perpetrating a predatory incursion. It cites an 1828 dictionary’s definition of incursion as “entering into a territory with hostile intention”, noting that this “include[s] military action, but … is [not] limited to such action”. 

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The administration argues that a predatory incursion includes “an entry … for purposes contrary to the interests or laws of the [U.S.]”, pointing to a 1992 federal court decision describing the Magnuson Fishery Conservation and Management Act as “an elaborate and path-breaking legislative enterprise intended to protect the American fishing industry, and to preserve endangered stocks of fish, from what were perceived to be predatory incursions by foreign fishing fleets into American waters.” Pilfering sensitive technology at U.S. schools seems to me at least as much a predatory incursion as poaching schools of fish in U.S. waters. 

The Supreme Court has ruled that aliens subject to removal under the AEA are entitled to judicial review in habeas corpus proceedings “as to ‘questions of interpretation and constitutionality’ of the Act as well as whether he or she ‘is in fact an alien enemy….’” Assuming that the PRC’s depredations on U.S. campuses constitute a predatory incursion, the only issue for courts to review would be whether Chinese students are, in fact, students from the People’s Republic of China. 

George Fishman is a senior legal fellow at the Center for Immigration Studies