My New Just Security Article On Trump's "Invasion" Executive and its Dangerous Implications

The article explains why the order is unconstitutional and why letting it stand would be very dangerous, including for the civil liberties of US citizens.

Today, Just Security published my article on "The 'Invasion' Executive Order and its Dangerous Implications." Here is a brief excerpt:

A number of crucial issues in immigration law and policy now turn on the meaning of a previously little-noticed term in the Constitution: "invasion." The Trump administration and some red state governments claim that illegal migration and drug smuggling across the southern border qualify as "invasion" under the Constitution and the Alien Enemies Act of 1798. If this ill-founded argument is not rejected by the courts, it would have dangerous and far-reaching implications. Among other things, it would empower the federal government to detain people without charge or trial, and open the door for states to engage in war with neighboring foreign nations without congressional authorization.

The rest of the article explains in detail why the theory that illegal migration and drug smuggling qualify as "invasion" is wrong, why allowing it to stand would have a variety of dangerous implications, and why courts should not punt the issue by ruling that the definition of "invasion" is a "political question." See also my March 2024 Lawfare article and Fifth Circuit amicus brief on related issues.