New Civitas Outlook Essay: Four Questions and Few Answers About the Invasion Clause

I have written several somewhat tentative posts on the Invasion Clause. This is an issue on which the courts have not substantially opined, and there is very little settled precedent In my latest essay for Civitas Outlook, I raise four questions for which there are few answers.

Here is the introduction:

On inauguration day, President Trump signed a proclamation "guaranteeing the states protection against invasion." Trump determined that the federal government had "failed in fulfilling [its] obligation to the States" at the southern border and would "take measures to fulfill its obligation to the States." In 2024, Texas Governor Greg Abbott also declared that there was an invasion at the southern border. Most critics saw these actions as partisan statements with no actual legal effect. I disagree. There are important constitutional ramifications to declaring an invasion. If there is an invasion, both the federal government and the states receive additional war powers to repel that invasion. Federal laws that conflict with those war powers may give way. Moreover, the children of invaders may not be entitled to citizenship at birth.

The concept of an invasion may seem obscure today, but it was certainly on the Framers' minds. Four separate clauses of the Constitution reference invasion. Some scholars and judges argue these issues are open-and-shut. They claim that an invasion must be hostile, peaceful migrants cannot be invaders, and the courts have the power to second-guess the president's proclamation. I am not so sure. Here, I will address four questions with few definitive and settled answers. First, what is an invasion? Second, who can declare an invasion? Third, what happens to other federal laws during an invasion? And fourth, do the children of invaders receive birthright citizenship? Once again, Trump has brought long-forgotten provisions of the Constitution to the arena and forced our polity to grapple with whether this President should be treated any differently from all other presidents.

And the conclusion:

Ultimately, I am certain about one principle, which I repeated through Trump's first term, and I will repeat for four more years. Whatever the meaning of the invasion clause, the answer cannot turn on the unprecedented nature of the Trump presidency. These legal questions should have an answer that does not depend on Trump. Either the President has the power to declare an invasion, or he does not. Either the state has the power to declare an invasion, or it does not. Either the judiciary has the power to second-guess a federal declaration of an invasion, or it does not. Either the children of invaders receive birthright citizenship, or they do not. The answer to those questions has to be the same in 1788, 1868, or 2025. I've raised four questions here, and I do not think many clear and settled answers exist. But in any event, these issues cannot decisively cut against the position taken by President Trump and Texas.

Comments

[Stuart]

"Either the children of invaders receive birthright citizenship, or they do not."

So, every child who has gained citizenship by birth in the U.S., their undocumented parents are invaders?

While the other three questions are seemingly valid questions, the framing of the fourth is way overbroad. If a couple from France was visiting the U.S. and had a premature baby, the parents are invaders?

If a pregnant women entered the U.S. with a visa (and because we are mind-readers, this was the main purpose of her visit), and gave birth, she is an invader.

Besides being overbroad, I think the other questions need to be answered first, before this question can be properly framed.

But it sounds good Josh, so what the heck.

[Stupid Government Tricks]

Good grief. Reversing cause and effect like that is about as dumb as you can get.

Josh: "Either the children of invaders receive birthright citizenship, or they do not." Or in other words: invade ---> citizenship for children

Stuart: "So, every child who has gained citizenship by birth in the U.S., their undocumented parents are invaders?" Birth in the US ---> parents were invaders

[Riva]

They're not "undocumented." They're illegal.

[ObviouslyNotSpam]

Visas are now illegal...

[Riva]

WTF? Change your alias (I would suggest "obviouslyaclown"), I was obviously responding to the "undocumented" reference.

As for the visa reference, a tourist is not an invader but the infant she gives birth to in the US while on vacation is not a citizen, at least if one actually applies the text of the 14th amendment and the holding of Wong Kim Ark.

[David Nieporent]

at least if one actually applies the text of the 14th amendment and the holding of Wong Kim Ark.

For you to say that you would have had to read either, and you have not.

[Katall]

And therein lies one of the problems with SCOTUS refusing to give advisory opinions. Assume that there is not an invasion, and a president says there is, acting accordingly. Someone sues and four years later SCOTUS says "no invasion", the president was wrong. All the harm has occurred and there is little recourse. In the alternative, assume the lower court says "no invasion" and issues a stay, but four years later, SCOTUS says "invasion" (or political question that it cannot decide, upholding the president). Again, the harm has occurred and there is no recourse.

[Brett Bellmore]

"Assume that there is not an invasion, and a president says there is, acting accordingly."

Not an invasion in whose opinion? You're treating the existence or absence of an invasion as an objective fact. But, absent some legally binding definition of "invasion", whether or not there is an "invasion" cannot be objectively determined.

So, assume there is not an invasion according to what definition? And, why is that definition, rather than another, binding?

[Noscitur a sociis]

I believe that’s precisely Katall’s point: that the Supreme Court should make that determination in advance so that we know the definition, rather than wait for a case or controversy making it necessary to decide.

[Brett Bellmore]

If there's no statutory definition, on what basis does the Supreme court produce a definition?

Sometimes what the Court is really supposed to do is say, "That's not actually our call." I don't imagine, though, that Ilya would be terribly happen if the Court ruled that whether there's an invasion is a political question.

[Malika the Maiz]

Well, there’s this entire theory called textualism that is used to discern what terms in the constitution mean quite often without statutory definitions.

[Stupid Government Tricks]

Pretty thin gruel for finding a definition of "invasion". That's Brett's point.

[Kords]

The entire project of originalism is to interpret the Constitution's text consistent with its original public meaning. Have you looked at the research regarding the original public meaning of "invasion"? If not, how can you say that is "thin gruel"?

The alternative is that each president gets to assign its own meaning to the text that is only controlling while that president is in office. If courts are simply required to defer to the each president's interpretation of the Constitution, what purpose do the courts serve?

In any event, Blackman assumes without evidence that the "invasion" question related to the Guarantee Clause directly bears on the citizenship question. No matter how the invasion question is decided, it wouldn't necessarily follow that children of "invaders" would not be entitled to birthright citizenship. SCOTUS in Wong Kim Ark did not merely say that birthright citizenship would be denied to children of invaders. Rather, it explained that birthright citizenship would not apply to children born "of enemies within and during a hostile occupation of part of our territory." Such children were not born subject to U.S. jurisdiction because although they were technically born within a U.S. territory, they were as a practical matter beyond U.S. civil authority. In other words, the child of an "invader" would be denied birthright citizenship only if they were born within a foreign-occupied territory. Both location and parentage matter.

[Brett Bellmore]

Yes, Kords, the bottom line is that each President, subject to constraint by Congress, (And each state, subject to constraint by the federal government.) gets to decide for himself when there's an invasion.

Because the word wasn't defined.

And, as I say below, if you want instead to use 1791 definitions of all the words in the Constitution, I'm cool with that. But I doubt you'd like it much.

What you don't get to do is PICK AND CHOSE. "We'll use original textual meaning here, and new meanings there, and, oh, in this spot will just pull something out of our asses and wave our hands around a lot."

[David Nieporent]

Yes, Kords, the bottom line is that each President, subject to constraint by Congress, (And each state, subject to constraint by the federal government.) gets to decide for himself when there's an invasion.

Because the word wasn't defined.

This argument makes no sense. The word is a common English word; words in law are only defined if they have a special technical meaning different from their ordinary one. The vast majority of words aren't defined.

And even if it was somehow rigorously defined, someone would still need to decide whether that definition had been satisfied.

[Kords]

Exactly. To say that each president can interpret the Constitution according to his own whims and that courts must defer to those interpretations is to have no Constitution at all.

Consider the Thirteenth Amendment:

"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

Well, golly. Neither "slavery" nor "involuntary servitude" are defined. I guess its cool if the president decrees that "slavery" means Big Macs and "involuntary servitude" means Whoppers. Now slavery (as the term is commonly understood) is legal in the United States, but Big Macs and Whoppers may only be consumed as punishment for crime. And the courts have no business telling the president he's wrong!

[Brett Bellmore]

We are not, as has amply been demonstrated here, over and over, dealing with an interpretation of "invasion" that just comes out of the blue. The word is indeed a common English word, and what is happening on our border matches at least one of the traditional definitions.

[Sarcastr0]

You think the Constitution was talking about repelling, like, a home invasion?
Or does it make more sense they meant the military thing?

[Kords]

As far as I know, the Constitution doesn't define any of its terms apart from "treason." The position that a president can unilaterally assign meaning to each undefined constitutional term, and that courts must defer to that meaning, is ludicrous and untenable. You could define a term, but then you'd have to define the terms that make up the definition, and then you'd have to define the terms that make up those definitions, and so on until infinity. The entire reason courts exist is to *interpret the law* and say what the law is.

Also, I actually do think we should apply the original public meaning of the constitutional text, at least to the extent possible. If the text was enacted in 1791, apply 1791 definitions. If it was enacted at a later date, apply definitions from that time. I never suggested that we should pick and choose. That luxury belongs to the conservative members of the Supreme Court who claim originalism only when it supports their desired outcome but discard it when it doesn't.

[Kords]

I also want to revisit this: "the bottom line is that each President, subject to constraint by Congress."

Why is the president only subject to constraint by Congress? Does the Constitution not create three branches? Do courts have no role whatsoever in the separation of powers and checks and balances? What authority do you have for your position that only Congress, and not the Courts, can constrain a president?

(Not to mention that it seems to be this current administration's position that it is not even subject to control by Congress, as evidenced by its destruction and defunding of congressionally-created agencies without congressional authorization.)

[David Nieporent]

As far as I know, the Constitution doesn't define any of its terms apart from "treason."

And even that explicit definition, of course, uses other words that themselves aren't defined. It's turtles all the way down!

[Brett Bellmore]

Well, yeah, there IS textualism, and the problem is that,

1. It just uses the word without defining it.

and,

2. Great, let's use 1791 definitions of all the words in the Constitution. I'm all in on that, Grover Norquest's bathtub can finally see use.

[Riva]

It's a good thing buffoons like you weren't around in 1812.

[ducksalad]

Brett, why should we bother to play? Words are defined in terms of other words, and you'll just pretend the next set of words are undefined. Here's what it would have been like if you'd attended the convention in 1787:

Brett: Invasion isn't defined, so POTUS can define it. Haha gotcha loophole!
Framers: OK, an invasion is a foreign military entering our territory uninvited.
Brett: Military isn't defined, so POTUS can define it. Haha gotcha loophole!
Framers: OK, a military is an organized body of armed men working under a commander.
Brett: Organized and armed aren't defined, so POTUS can define it. Haha gotcha loophole!
Framers: OK, organized means, let's see...
Brett: Whatever you say, it's undefined! Haha gotcha loophole!

I don't believe a single person in this argument honestly thinks a single pregnant couple is an invasion. But they say it anyway. There's no point in talking about definitions with people who play word games.

[Brett Bellmore]

We are not playing here. What is going on at our border meets at least one of the traditional definitions of "invasion", and the constitution did not bother to specify that it had to be a military invasion. It's not remotely as bad faith as Wickard, or even using the Supremacy clause to apply to a federal policy of NOT enforcing the law.

And I'll say this again: If you want hyper-strict textualism using 1791 dictionaries, I'm cool with that. What I'm not cool with is anything goes for your side, and my side has to color inside the lines. We both play by the same rules.

[ducksalad]

What I'm not cool with is anything goes for your side, and my side has to color inside the lines. We both play by the same rules.

Who are these "sides" you are talking about, and what "rule" do you think I'm being inconsistent about? Show me a post where I approved of a president - any president - claiming authority to redefine words.

It's not remotely as bad faith as Wickard, or even using the Supremacy clause to apply to a federal policy of NOT enforcing the law.

How dare you use your side's past crimes against the constitution to justify new crimes by your side against the constitution.

Your side being people who start from political objectives and engineer word definitions to fit. FDR and Trump are on the same side of this issue, both play with words like interstate commerce and jurisdiction and invasion. Our side being people who read the text and believe that it limits what the government can do.

[Malika the Maiz]

“Once again, Trump has brought long-forgotten provisions of the Constitution to the arena and forced our polity to grapple with whether this President should be treated any differently from all other presidents.”

Not following precedent in how they treat a President calling for unprecedented things? Must be Trump Law!

[Riva]

Not unprecedented but rare. And great presidents are rare.

[ObviouslyNotSpam]

So are horrible ones.

[windycityattorney]

This whole invasion thing is pretty ridiculous. Equally ridiculous is citing various 'emergencies' to trigger economic tariff policy. Does anybody seriously think the US is suffering from an energy emergency justifying emergency tariff powers on oil imports?

Why are people pussy footing around with language here? Its clearly a naked power grab. By declaring whatever the executive branch wants an 'invasion' or an 'economic emergency' for the purpose of allowing executive power to increase at the expense of other branches of govt (or to override them or disregard constraints put on the executive by them) then its a naked power grab. If the invasions or emergencies are simply an expediency to gain more executive power then they can be viewed as illegitimate designations and the executive branch is acting illegitimately when they do anything pursuant to the fake declarations they would otherwise not be able to do in the absence of the emergency or invasion. The motive for declaring the emergency should matter when there is ample reason to believe the emergency or invasion is made up for purely political objectives of aggregating power in the executive.

NO KINGS

[cannpro]

“ the President can declare there is an invasion, then federal statutes governing citizenship, and indeed the Citizenship Clause of the Fourteenth Amendment itself, may give way”

So Josh admits he believes in a living constitution. The constitution’s meaning can be changed based on the whims of how the President feels in any given moment. And because he can determine anyone is an “invader” at will he has exclusive power to declare anyone he wants to be an Alien at any time - a power even greater than congress. A Monarch with absolute power to decide who is a citizen. Just like the founders wanted.

[Armchair]

Well, let's work this out.

Hypothetically speaking, let's say there were British women serving in the army and ships of the Great Britain during the War of 1812. During the "invasion", one of these women gives birth on US soil.

Does the child have birthright citizenship? Why or why not?

[Noscitur a sociis]

Well one thing, the Fourteenth Amendment hadn’t been ratified.

[David Nieporent]

That is, of course, true, but note that the 14th amendment merely codified the centuries-old common law rules.

But to answer Armchair's question, foreign ships of war were not considered subject to the jurisdiction of the U.S., and therefore the child would not be a citizen.

[Zarniwoop]

Setting aside NAS’s pithy observation, we’re talking about this “invasion”, right?

The Burning of Washington, also known as the Capture of Washington, was a successful British amphibious attack conducted by Rear-Admiral George Cockburn during Admiral John Warren's Chesapeake campaign. It was the only time since the American Revolutionary War that a foreign power had captured and occupied a United States capital. Following the defeat of American forces at the Battle of Bladensburg on August 24, 1814, a British army led by Major-General Robert Ross marched on Washington, D.C. That evening, British soldiers and sailors set fire to multiple public buildings, including the Presidential Mansion, United States Capitol, and Washington Navy Yard.[5]

(Per wiki and pedia.). Let’s say the woman was General Ross’s cook and traveled with British military field HQ in occupied US territory, and was under British military/legal jurisdiction and control - facts matter, and if you want a clear answer, make up an unambiguous hypothetical.

Yeah, I would have very little trouble with the conclusion that her child (born while her boss was militarily occupying and burning Wash DC) would not be entitled to birthright citizenship.

But the child of a Rolling Stones groupie born during a quick concert stopover in Wash DC during the 1960’s British Invasion is different, despite use of the word “invasion” in the popular press.

So where were you going with this?