The Volokh Conspiracy
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My New Article "Immigration is Not Invasion"
It comprehensively explains why illegal migration and drug smuggling do not qualify as "invasion" under the Constitution and the Alien Enemies Act of 1798.
My new article, "Immigration is not Invasion" is now available on SSRN. Here is the abstract:
In recent years, state governments and the second Trump Administration have increasingly advanced the argument that illegal migration and cross-border drug-smuggling qualify as "invasion" under the Constitution, and the Alien Enemies Act of 1798 (AEA). If these arguments are accepted by courts, or if they rule the issue is committed to the unreviewable discretion of the executive, the consequences will be dire. Such an outcome would pose a grave threat to the civil liberties of both immigrants and US citizens. It would also enable state governments to initiate war without federal authorization. This article makes the first comprehensive case against claims that illegal migration and drug smuggling qualify as "invasion." As James Madison explained in 1800, "Invasion is an operation of war." Illegal migration and drug smuggling do not qualify.
Part I summarizes the history of the "invasion" debate and currently ongoing litigation over it. Part II explains why the broad interpretation of "invasion" is manifestly wrong under the text and original meaning of the Constitution. The concept does not include illegal migration or drug smuggling. This conclusion is supported by the constitutional text, extensive evidence from the Constitutional Convention and the ratification process, and references to "invasion" in the Federalist Papers.
In Part III, I consider the meaning of "invasion" in the Alien Enemies Act of 1798. The text and public meaning indicate it is essentially the same as that in the Constitution. Under the Act, an invasion requires a military attack. This reality is not changed by the fact that many Americans die as a result of overdosing on illegal drugs, or by recent US military attacks on suspected drug smugglers in international waters.
Part IV outlines the dire implications of the broad view of invasion. State governments would have the power to wage war in response to undocumented migration and smuggling, even if such warfare were not authorized by Congress. This would be a major undermining of Congress' power to declare war, and threatens to involve the United States in warfare at the behest of a single state government. Even worse, the broad view would also effectively give the federal government the power to suspend the writ of habeas corpus at any time. These dangerous implications strengthen the originalist case against a broad definition of "invasion." They also cut against the broad definition from the standpoint of various living constitution theories of interpretation.
Finally, Part V explains why courts should not defer to the president or to state governments on either the meaning of "invasion" or the factual issue of whether an "invasion" – properly defined – has actually occurred.
I feel a little silly to write so much about the meaning of just one word. But the meaning of this one has major implications for civil liberties and our constitutional system. Despite what SSRN says, the article is not actually 101 pages long. It's about 65 pp. with an extensive appendix of references to "invasion" at the Constitutional Convention, state ratification conventions, and the Federalist Papers.
