The Volokh Conspiracy
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Federal Court Rules Against Trump's "Invasion" Executive Order
But, notably, the court chose not to rule on the issue of what qualifies as an "invasion."
Today, in Refugee and Immigrant Center for Legal and Educational Services v. Noem, US District Court Judge Randolph Moss issued an important decision blocking Donald Trump's January 20 "invasion" executive proclamation, which sought to foreclose nearly all pathways to legal migration and asylum applications for migrants crossing the southern border. Trump claimed the order is authorized by both federal statutes and the Guarantee Clause of Article IV, Section 4 of the Constitution, which states: "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion."
Judge Moss rejects both grounds for the order, in a long and detailed 128-page ruling. Interestingly, however, he rejects the administration's constitutional argument without defining what qualifies as an "invasion." Here is his summary of the decision:
For the reasons that follow, the Court concludes that neither the INA [statute] nor the Constitution grants the President or the Agency Defendants authority to replace the comprehensive rules and procedures set forth in the INA and the governing regulations with an extra-statutory, extra-regulatory regime for repatriating or removing individuals from the United States, without an opportunity to apply for asylum or withholding of removal and without complying with the regulations governing CAT protection. The Court recognizes that the Executive Branch faces enormous challenges in preventing and deterring unlawful entry into the United States and in adjudicating the overwhelming backlog of asylum claims of those who have entered the country. But the INA, by its terms, provides the sole and exclusive means for removing people already present in the country, and, as the Department of Justice correctly concluded less than nine months ago, neither § 1182(f) nor § 1185(a) provides the President with the unilateral authority to limit the rights of aliens present in the United States to apply for asylum. Nor can Article II's Vesting Clause or Article IV's Invasion Clause be read to grant the President or his delegees authority to adopt an alternative immigration system, which supplants the statutes that Congress has enacted and the regulations that the responsible agencies have promulgated. As the Framers understood, "every breach of the fundamental laws," even when "dictated by necessity," undermines respect for the rule of law and "forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent or palpable." The Federalist No. 25, at 167 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Here, nothing in the INA or the Constitution grants the President or his delegees the sweeping authority asserted in the Proclamation and implementing guidance.
On the constitutional argument regarding "invasion," Judge Moss chose not to address the issue of what qualifies as an "invasion," instead ruling that the Guarantee Clause doesn't grant the president any relevant independent authority:
Defendants' reliance on the Constitution's guarantee that the "United States . . . shall
protect each [state] against Invasion," U.S. Const., art. IV, § 4 (the "Invasion Clause"), fails for the same reasons. Defendants themselves place little or no independent reliance on the Invasion Clause and, instead, merely suggest that the President plays some role in protecting the States "against Invasion…." even assuming that is correct, Defendants do not dispute that Congress plays the primary role in crafting the governing rules and that, under the Youngstown framework, see Youngstown, 343 U.S. at 637–38 (Jackson, J., concurring), the President may not act in derogation of the laws that Congress has enacted. Although relevant precedent is sparse, the Supreme Court has opined that the responsibility for "carry[ing] into effect" the Guarantee Clause "is primarily a legislative power," Texas v. White, 74 U.S. 700, 701 (1868), overruled on other grounds by Morgan v. United States, 113 U.S. 476 (1885), and that it "rest[s] with Congress . . . to determine . . . the means proper to be adopted to fulfill th[e] guarantee" against "domestic violence," Luther v. Borden, 48 U.S. 1, 43 (1849). There is no reason to believe that the Invasion Clause, which appears in the very same sentence of Article IV as these provisions, allocates responsibility any differently. That conclusion finds further support in Article I of the Constitution, moreover, which grants Congress the power to "provide for calling forth the Militia to . . . repel Invasions," U.S. Const., art. I, § 8, cl. 15, leaving little doubt that responsibility under the Invasion Clause is, at the very least, shared between the political branches. Finally, it is far from clear that the Invasion Clause confers any power to act that is not found elsewhere in Articles I and II of the Constitution. Unlike Article IV, Section 4, which speaks in terms of the responsibility of "[t]he United States" to protect the States, Articles I and II speak in terms of the "Power[s]" vested in the Congress and the President to perform their constitutional responsibilities…. If the President lacks authority under the Vesting Clause of Article II to supplant the INA with an alternative set of immigration laws, that power cannot be found in Article IV, Section 4.
I think this is correct as far as immigration policy goes. The president cannot override congressional mandates and impose his own new migration policies merely by proclaiming the existence of an "invasion." An invasion does not give the president blanket authority to impose new immigration restrictions.
But I am skeptical of the idea that the Invasion Clause component of the Guarantee Clause never gives the president any independent authority. In the event of a genuine "invasion" - i.e., an organized military attack - the president would surely have at least some authority to respond, even in the absence of specific congressional authorization. In that situation, the Invasion Clause reinforces his powers as Commander-in-Chief of the armed forces.
For that reason, I think the better approach to this issue would be to rule that illegal migration and cross-border drug smuggling do not qualify as an "invasion." Rather, as James Madison wrote in addressing this very issue, in his Report of 1800, an "[i]nvasion is an operation of war." I address the meaning of "invasion" in much greater detail here and here.
The rest of Judge Moss's long and detailed opinion addresses the statutory issues, and explains why he is granting a class certification, among other things. I will not attempt to go over these issues in detail here. But his general conclusion strikes me as correct. No statute gives the president the "authority to adopt an alternative immigration system, which supplants the statutes that Congress has enacted."
It is also notable that Judge Moss emphasizes that immigration restriction is primarily a congressional power, not an executive one. I agree on that, as well, assuming the power belongs to the federal government at all (which, under the original meaning of the Constitution, it mostly does not). That principle lends support to a possible nondelegation challenge to Trump's massive new travel ban order.
This case should be distinguished from ongoing litigation over Trump's invocation of the Alien Enemies Act of 1798, which also involves the meaning of "invasion," among other issues. On that, see my recent amicus brief, on behalf of the Brennan Center, Cato Institute, Prof. John Dehn, and myself (coauthored with Katherine Yon Ebright and Leah Tulin).
Obviously, this litigation will continue on appeal.
