My New Just Security Article On Trump's "Invasion" Executive Order 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.

Comments

[Brett Bellmore]

Spoiler: The courts will punt by declaring it a political question.

[Caphon]

I don't think that's punting, I think thats a direct answer to the question, right or wrong.

Reading Ilya's article, I'm struck by a few points he makes:

* Madison: "invasion is an operation of war" - So are bombings, but they aren't the exclusive domain of war between nation states. Let's not interpret Madison's observation to be so limiting.

* Ilya: "it makes little sense to assume that 'invasion' includes nonviolent actions such as illegal migration or smuggling" - the US citizenry (by and large) does not perceive organized smuggling humans and drugs as "nonviolent".

* Bowman: "invasion" "invariably refer[s]… to a hostile armed incursion into or against the territory of the states or the nation." - armed incursions are perceived to be a present condition on the border. To which one might say that they are rare and exceptional, to which I would say they are likely proportional to interference (interfere in smuggling operations more, see more conflict). In any case, one cannot address one problem without impacting the other.

* Ilya: "the invasion provisions of the Constitution – especially the Guarantee Clause – were understood to protect not only against foreign invasion, but against invasions of one state by another." This seems to bolster a broader interpretation of the term "invasion". Not so far as the straw man of paupers and freedmen as Ilya uses, but invasion is clearly not limited to the idea of a foreign nation executing a formally declared war.

Let us think about Russia and Belarus facilitating border pressure on Poland. Is it an act of war? It's widely regarded as a form of hybrid warfare with the intent of destabilizing the nation, fomenting unrest, underminding public trust, increasing economic pressure and changing political priorities in the target nation - ultimately slow-burn regime change. That this is considered a "gray zone" and not an outright act of war is not some objective truth, but fundamentally a leadership problem - a lack of decisiveness, a problem of politic hesitation, a problem for the ballot box, not a court.

Wasn't the First Seminole War partially justified (in politics if not in fact) by the claim that independant bands of Seminole warriors and escaped slaves were crossing the borders from Spanish-controlled territory to conduct cattle raids, property damage, and violence? Seems at least a little analogous to organized gangs conducting armed incursions from Mexican-controlled territory, and where that host nation is providing shelter to, if not facilitating, the actors.

In that case, Monroe and General (later President) Jackson did not consider the condition an act of war by Spain, but looked on Spain as a failed state by virtue of not being able to control their own territory. Specifically, Jackson claimed they lost sovereign protection through this failure.

Whether one considers Mexico to be engaging in hybrid warfare against the US or to be a failed state, Jackson would certainly say that it was the US's obligation to protect its citizens on the border and engaged in war and annexed territory at least partially by way of this justification. I bring this up not to justify the Seminole War(s) and the truly awful consequences to the tribes. Rather, I'm saying that if we're harkening back to random statements by Madison about the nature of 'invasion', we can also look to the material actions of this nation in the past when its international borders were violated routinely by non-state actors. There was no quesiton of whether 'invasion' was an allowable Scrabble word or what its dictionary definition was.

Fundamentally, Ilya's rhetoric relies on a model where illegal border crossings are almost purely the quests of innocents looking for better economic opportunity. That model may hold some usefulness for crafting better pathways to legal immigration, but it has no applicability to the question of international border enforcement at large. The reality is far more complex in scope, severity, consequence, and motivation. One need only spend some time in border towns rather than an office at GM.

[Brett Bellmore]

"I don't think that's punting, I think that's a direct answer to the question, right or wrong."

Perhaps I should have put sneer quotes around "punt", I agree with you that this wouldn't be punting, it would be directly deciding the case. It's Ilya who'd characterize anything but his preferred outcome as a "punt".

The reality of the matter is that Mexico has been permitting, even facilitating, the flow of illegal immigrants from points South to our border. That IS state action.

Jittery Mexico breaks up caravans, drops migrants in cartel-infested Acapulco ahead of Trump inauguration

“Immigration [officials] told us they were going to give us a permit to transit the country freely for 10, 15 days, and it wasn’t like that,” said a 28-year-old Venezuelan, Ender Antonio Castañeda.

“They left us dumped here without any way to get out,” he said from Acapulco. “They won’t sell us [bus] tickets, they won’t sell us anything.”

Notice that this is a change in policy. Previously Mexico had actually been permitting, even facilitating, the travel of illegal aliens to our border.

So you can't honestly say that it's not state action against us, it absolutely was.

[retiredprof]

You will find a thorough discussion the various uses of "invasion" and "invaders" on pp. 19ff in The Constitution, Invasion, Immigration, and the War Powers of States, Br. J. Am. Leg. Studies 13(1) (2024), DOI: 10.2478/bjals-2023-0014.

Specifically, on p23, documented support for this usage in 1754: "An 'invasion' could refer also to uninvited entry by groups of immigrants," citing the Connecticut settlers invading Pennsylvania’s Wyoming Valley.

[Drewski]

Unfortunately I think they might. And within a reasonable boundary I think it is. It just makes me sad that the idea of reasonableness is so badly corrupted that this dialogue is even taking place.

[Randal]

I think the court should be and is willing to enforce a boundary of reasonableness around political questions. The President (and Congress) can't just ignore the Constitution entirely as Trump is doing here.

If you didn't like Biden, you really won't like the next Democratic President who's no longer bound by criminal laws or the Constitution.

[TKK]

Correct! "Invasion" IS a political question.

Prof. Somin is NOT to be relied upon with regard to this issue. He is repeatedly disingenuous in his arguments. He refuses to seriously consider 50 U.S.C. 21 for what it is, a legitimate delegation of authority from Congress.
In his latest argument, Prof. Somin skirts past 50 U.S.C. 21 to focus on the Texas case that looked to a different, Constitutional, authority, exercised by a different entity (a State versus the President).
Prof. Somin is simply not a serious person when it comes to this issue.

[Dr. Ed 2]

" 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"

That was the INTENTION...

It's not just Ilya, this is the problem with having lawyers try to explain US history, instead of people who actually understand the history and context of documents.

The Constitution was written in the Summer of 1787 in response to Shay's Rebellion the prior Winter (1786-1787). And very real fear of invasion by British-allied Indians, which led to the War of 1812.

The invading horde of Illegal Aliens is EXACTLY what was feared...

[Longtobefree]

So you are saying that when Communist China send in three divisions of troops we should be a bit concerned?

(large numbers of 'military aged young men' don't get out of Communist China without the approval of that government)

[David Nieporent]

"Military aged" is just the latest bullshit from the MAGA loons, and what "large numbers," and why can't they "get out of Communist China" anyway?

[Dr. Ed 2]

I don't know if the three divisions of troops or the academic espionage is worse -- but people involved in the latter have been identified as officers in the PLA army.

[windycityattorney]

How do we have an imperial presidency where there are multiple imperial agents? I.e, Trump as President and CiC. Gov Abbot of Texas. Gov Desantis of Florida. Whoever the F is governor of Louisana?

If Trump says the southern border is an invasion zone...and Gov of Texas, Louisiana and Florida agree but the Governors of Arizona, New Mexico and California do not... what the f then??

This is ridiculous. Words have meaning. An ongoing immigration mess at the southern border that has been happening for the last 30+yrs is not a sudden emergency requiring or invoking 'invasion.' Just like the energy 'emergency' is made up. You Trump bootlickers are playing with fire here and you (and the rest of us) will get burned.

[damikesc]

Shall we go into the numbers crossing over the last 4 years, abetted by Biden and Mayorkas?

[I Callahan]

Be sure to wipe off your screen of the spittle generated from your invective. Because that's all it was - pure emotion.

[thesafesurfer]

The same people who…

Kicked out soldiers for refusing a vaccine, Lied about the origins of Covid, Tried to enact a nationwide vaccine mandate, Censored social media, Tried to create a ministry of truthm Lied about Hunter Biden’s laptop, Covered up Joe Biden’s dementia, Stopped enforcing immigration laws, Let 10M+ illegal immigrants cross the border, Installed DEI commissars in every agency, Raised pride flags at overseas embassies, Let biological males compete in girls sports, Weaponized the DOJ to attack Trump, Used lawfare against Elon’s companies, Defended Biden pardoning his family, Spent four years lying to us every single day

…are very concerned about an "imperial presidency" and abuse of executive power. LOL!

[Roger S]

The danger is that the invaders might be stopped. As usual, Somin takes the anti-American side of this.

[thesafesurfer]

11 million people unlawfully crossing a border over four years is not an invasion to blind ideologues.

[mulched]

Prof. Somin doesn't even care what the argument is, as long as it points toward more immigration.

Totally results-oriented thinking.

[Josh R]

Although the EO proclaims there is an invasion at the southern border, and invokes Article IV to justify denying any entry from the southern border, it also invokes 8 U.S. Code § 1182(f):

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

I'm guessing the lawyers are going to use that as the alternative source of authority if the courts reject (or punt on) the claim of invasion. Trump v. Hawaii would almost certainly support this argument.

[Drewski]

The purpose of the invasion declaration isn't to bolster his actions but to give the states unilateral authority to act. This started with Texas stringing barbed wire in the Rio Grande.

[Randal]

Good point. The "political question" doctrine doesn't apply to Governors. I expect SCOTUS will have no problem kiboshing that one.

[thesafesurfer]

11 million people unlawfully crossing a border over four years is not an invasion to blind ideologues.

[Randal]

There's a lot of things it's not. It's not a tsunami. It's not an occupation. It's not a casus belli. (One hopes!) It's not a force majeure. It's not an epidemic. It's not a crime wave. It's not red rover. It's not an intifada. It's not a Mafia. It's not a pickle chip. It's not an invasion.

These are all facts. It's not ideological to indicate a fact. It is ideological to deny a fact. Something MAGA has gotten very comfortable with.

[Josh R]

On the merits of the policy, can we stop with the bullshit that this is motivated by just opposition to illegal immigration. Trump's EO ends all immigration from the southern border. He doesn't want any of those people coming into this country even by legal means as specified by statute.

[Brett Bellmore]

Funny that it doesn't actually SAY that.

[Josh R]

You got the wrong order. Ilya blogged about this one:

I therefore direct that entry into the United States of such aliens be suspended until I issue a finding that the invasion at the southern border has ceased.

[Brett Bellmore]

Hey, let's look at the line immediately prior, to see who "such aliens" are:

" I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), that the entry into the United States on or after the date of this order of aliens engaged in the invasion across the southern border is detrimental to the interests of the United States."

So, no, not all immigration. Only ILLEGAL immigration.

[Josh R]

The "aliens engaged in the invasion" cannot be limited to those who cross the border illegally because there is no need for an EO to proscribe them from entering.

Trump does not want anyone to be able to get legal authorization to enter through the southern border.

[Brett Bellmore]

Now, Somin says, " The Trump order asserts that the president has the right to use the invasion theory to shut down nearly all immigration for so long as he wants, even that otherwise authorized by federal statute."

Again, look at the EO, and see if that is really true.

The closest I can find is this:

"I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), that the entry into the United States, on or after the date of this order, of any alien who fails, before entering the United States, to provide Federal officials with sufficient medical information and reliable criminal history and background information as to enable fulfillment of the requirements of sections 212(a)(1)-(3) of the INA, 8 U.S.C. 1182(a)(1)-(3), is detrimental to the interests of the United States. "

Section 212 has to do with inadmissible aliens. Somin has said in the past that he thinks health and crime restrictions at the border are OK. But, it seems it's not OK to demand enough information to actually implement them?

[Joe_dallas]

Josh is just trying to out do Ilya for most inane promotion of legal and illegal immigration

[Bob from Ohio]

"even by legal means "

Can you specify what "legal means " are prevented by the EO?

[MaddogEngineer]

You are correct that many of the president's MAGA supporters are opposed to all immigration.

However, the president is not, having recently expressed his support for H1B visas, and apparently whatever other flavor allows him to staff some of his hospitality properties.

Plus, none of the executive orders to date say what you claim it does. Nothing is ended, just paused. We shall see.

I continue to be flummoxed by Trump critics who, while offended by his actual lying, themselves also lie about him and his policies.

[Kazinski]

Where does it say people with a valid visa won't be admitted?

Besides the border isn't the only way to enter the country, its easy to fly, if you have a valid visa or passport from a visa waiver.country.

[rrgg]

You lost me at "illegal migration." This is a very recent term invented by the media and/or think tanks. No one is migrating, and it's a one-way move. Start with the legal term, alien.

[Brett Bellmore]

It's the "euphemism treadmill". People adopt a euphemism to denote something that's unpopular, in the hope of making the unpopularity go away. But since it's the thing that's unpopular, not the word, the euphemism swiftly becomes just as unpopular, and they have to go looking for another euphemism, and another, and another.

Illegal alien becomes undocumented alien, becomes undocumented migrant, then just 'migrant' or 'immigrant' by itself. It just goes on and on, because changing the word doesn't alter people's opinions, no matter how many times you do it.

[David Nieporent]

Um, how is "illegal migration" a euphemism for anything? It says "illegal" right there in the name.

[Sarcastr0]

You are so busted on the issue you thought I used the term undocumented immigrants regularly on this forum.

You yell about semantics, and then supply whatever semantics are needed for you to get properly mad.

[Commenter_XY]

It is a linguistic battle.

[Roger S]

There are seasonal working who migrate back and forth. But I do not think that the word migration requires going back. There are some animals that migrate, and do not go back.

[Brett Bellmore]

The only one that springs to mind is Monarch butterflies.

[endy.cameren]

Why does it have to be one or the other? I can easily see a situation of 8 million economic migrants, 1 million refugees, with 10,000 covert operatives trained and sent by state or quasi-state actors to engage in a bonafide invasion to engage in hostile acts (asymmetric warfare, sabotage, economic disruption, etc) all expertly hidden within the mass of other people.

So what does a president do when there is an invading force hidden among the huddled masses crossing the border? Haventt they already found numerous terrorist watch-list persons traveling incognito with southern border crossers in the last several years??

[MaddogEngineer]

Breaking: law professor who believes in a right to unrestricted immigration is alarmed by a presidential administration that views the current unrestricted immigration (unmitigated by its predecessor) as an invasion.

[TextFirst]

"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."

If you're troubled by the implications of this, then take up with the invaders. Blaming the invaded for the adverse consequences of an invasion is merely victim-blaming.

[David Nieporent]

There is no invasion. There's no good faith argument that there's an invasion.

[Brett Bellmore]

I have sad news for you. Whoever the courts in the end decide gets to make that call,

1. It won't be you.
and,
2. They won't care what you think.

[Dan Schiavetta]

Not a serious response.

[Brett Bellmore]

It's a perfectly serious response: David's opinion about the matter carries precisely zero weight. He can insist that there is no invasion all day, he can shout it to the heavens, and it doesn't matter, because he isn't one of the people who get to decide that.

Now, Trump? He IS one of those people, so HIS opinion, unlike David's, matters.

Or to put it more bluntly, "Area Man Passionate Defender of What He Imagines "Invasion" to Mean."

[SRG2]

We don't know that Trump is one of the people who gets to decide it. That's up to the courts.

[Brett Bellmore]

Be honest, now. Are you really confident the courts won't decide that the President and Commander in Chief of the military gets to decide, (Possibly subject to being overruled by Congress...) that there's an invasion?

It's got to either be the President, or Congress, after all, not David. The odds of the judiciary deciding that they're entitled to override either or both, and instead substitute David's opinion, is nil.

David's denial that there's even a serious argument against his position is not impressive. You don't prove you're right by denying that the other guy is serious. You do it by making arguments.

[SRG2]

I don't know and neither do you. You're quite happy to make the identical point here: "however the courts in the end decide gets to make that call,"

[David Nieporent]

You do it by making arguments.

The argument is that an invasion requires a organized military effort by one state or quasi-state entity to seize sovereign control of another state's territory. Nothing here has any of the elements of an invasion.

[Brett Bellmore]

No, not the argument that you're right, and people disagree with you. The argument that their disagreement isn't serious.

[Randal]

Well, nobody has made a serious argument that it is an invasion. The EO certainly doesn't try. Nor did Abbott or Mr. Louisiana. You're not either, you're just making meta-arguments about who gets to decide.

In other words, it's pretty obvious that MAGA doesn't really think it's an invasion either. They just like whipping their dicks out.

[David Nieporent]

A court might rule that there's no invasion. A court might rule that it's a political question. I am confident that a court will not decide that there is an invasion.

[Brett Bellmore]

I'm quite confident of that myself. They're not going to decide that there is an invasion because that's not within their jurisdiction. But that means that neither is deciding that there isn't...

All they can really decide is who gets to make that call.

[Dr. Ed 2]

But an accurate one...

[Roger S]

Webster says invasion is
1: an act of invading
especially : incursion of an army for conquest or plunder
2: the incoming or spread of something usually hurtful

It defines invade:
1: to enter for conquest or plunder
2: to encroach upon : infringe

So I read this as saying an invasion could be by an army, but could also just be aliens moving into your space for jobs and goodies.

[Randal]

It could, but it doesn't. As with all words, "invasion" as used in the Constitution takes a single definition, not all definitions. And we all know which one that is.

Or do you also think that the right to bear arms is about dismembering large woodland mammals?

[Sarcastr0]

Brett: "You do it by making arguments."

Brett's argument: "Whoever the courts in the end decide."

Trump's election seems to have Brett stuck repeating 'the truth is whatever people in power say it is.'

Did you hear he's too into liberty to be a libertarian?

[Roger S]

There is no good faith argument in Somin's posts anyway.

[SRG2]

It's not an invasion as meant/intended by the Constitution nor as understood at the time of writing. It isn't an invasion as defined in tradition or history.

The above paragraph is true regardless of what the courts decide. If the SC says that current immigration and drug smuggling is an invasion according to the text and tradition/history, they will be wrong in fact but by definition right in law - and hence will be roundly condemned as dishonest collabos.

[Brett Bellmore]

Yeah, and by that standard Wickard was a steaming heap of crap, and you know it. Pretty selective about your use of originalism, aren't you?

[SRG2]

Being selective about originalism is one of the key practices of originalism, of course.

[Sarcastr0]

Being so mad at Wickard you discard rule of law everywhere else.

[Brett Bellmore]

You don't get to appeal to the rule of law while rejecting it yourself, and expect people to take you seriously.

[Sarcastr0]

I believe in the rule of law for all occasions. You can disagree with me on what the law is, but I'm internally consistent.

You, on the other hand, are excusing your own lack of fidelity to rule of law because Wickard bad.

We are not the same.

[Brett Bellmore]

Who was claiming that Congress refusing to enact a law the President wanted entitled the President to act on his own, again? Very rule of lawy of you.

[Bob from Ohio]

"meant/intended ... as understood"

Yet , the text says "invasion", so that controls. Things other than "armies" invade.

Just yesterday, smugglers shot across the border at Border Patrol. Seems invasion-y.

[SRG2]

Seems invasion-y.

No it doesn't. It sounds like smugglers shooting at Border patrol.

[Bob from Ohio]

Just a little armed assault.

[Sarcastr0]

We have a crime for that even.

[John F. Carr]

"open the door for states to engage in war with neighboring foreign nations"

Sounds promising. Let Montana invade Alberta and have Alberta's puppet government ask to join the United States as a territory.

[JoeFromtheBronx]

Under the long-standing legal doctrine of noscitur a sociis, “a word may be known by the company it keeps.”

Nickname drop!

[JoeFromtheBronx]

I appreciate the discussion of "insurrection" and Prof. Post's entry as well. The response to the Trump Administration need not just be a Blackman Show. There also are First Amendment issues that Prof. Volokh would logically address, for instance.

[Krenn]

I don't know.... I could see arguments that invasion is a matter of intent, and that the standard has a lot more to do with how well-organized, well-armed, and moving in single cohesive groups the 'invaders' are than any other standard.

Claiming that ALL illegal migrants or ALL drug smugglers are invaders is a bit much, but if they come in groups of 50 or more, obey a vague chain-of-command, carry at least some weapons, have measurable group resources and supplies, and are attempting to carry out a specific purpose which is illegal under US law, and they know-or-should-know that.....

I mean, if you made a list of every group of 50-or-more unwelcome Indian parties which the founders faced in their lifetimes, and which the founders either 'called' an invasion, or responded to using the same tools 'as' an invasion, there's probably going to be at least some overlap between the most-dangerous smugglers we face today, and the least-dangerous Indian Parties they faced back then.

[Roger S]

The common dictionary definitions of invasion do not require that the invaders be well-organized or well-armed.

[Krenn]

Honestly, anything that is 'more' well-organized or well-armed than a family of five might potentially count. That don't have to GOOD at the whole organization and armament thing.

[Randal]

That's because you're looking at the definitions for "invasion of privacy" and "invasion of Africanized honeybees." You're right that bees and privacy need not be armed. But one of the definitions of "invasion" does require it. And since the Constitution is obviously not talking about privacy or bees, it's pretty clear which definition applies.

[Randal]

The Indians were fighting for their sovereignty. From their perspective, they were the ones being invaded.

Anyway, none of the southern immigrants are fighting against American sovereignty, or as Roger's dictionary puts it, "conquest or plunder." Danger, crime, violence, even if true, doesn't make something an invasion.

I know you really really want Trump to be some sort of prophet, but he's just a con man. Try to remember that.

[With Trump in, "now Lord you can let your servant go in peace"]

Bet you are like my brother and brother-in-law : AN intense LIncoln hater because he supposedly trample on the law.

You are wrong, of course, and there will never be rapprochementbecause you are on of those types that see a man dash acroos the street to help a fallen eldery woman and yell "Jaywalker !!!!"

[ReaderY]

The choice is Congress’ to make. It seems to me that if Congress amends the Posse Comitatus Act to authorize the President to use the military to keep would-be immigrants or drug smugglers from crossing the border, it would be acting within its plenary power over immigration, foreign affairs and military matters. Congress could classify it as an invasion if it wanted to.

In Duncan v. kohanamoku, the Supreme Court held that whether an emergency justifying the suspension of the writ of habeas corpus exists is a question subject to judicial review and determination.

So while Congress could, on its mere say-so, declare this conduct to be an invasion for purposes of exercising some of its powers, including authorizing use of the military, this would not be sufficient for more drastic steps like suspending the writ of habeas corpus or imposing martial law.

However, it would still not be an invasion for all purposes.