What Just Happened: The "Invasion" Executive Order and Its Dangerous Implications

https://www.justsecurity.org/106953/invasion-executive-order-implications/

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.

In a newly issued executive order, President Donald Trump claims that the illegal migration qualifies as “invasion,” thereby giving him the power to shut down all or nearly all legal pathways to migration across the border, even in violation of laws enacted by Congress. He cites 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.”

Trump also claims that the supposed “invasion” authorizes him to use the Alien Enemies Act of 1798, as a tool of mass detention and deportation. The Alien Enemies Act of 1798 is a component of the notorious Alien and Sedition Acts, the only part of that legislation that remains on the books today. The Alien Enemies Act allows detention and removal of migrants only when there “is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government.” In that event, the president is given the power to detain or remove “all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized.” Notably, the Act allows detention and deportation even of legal immigrants, so long as they have not yet become naturalized citizens.

In previous litigation against the Biden administration, Texas’s GOP state government used the “invasion” argument to claim the state could adopt anti-immigration policies that might otherwise violate federal law, such as detaining and deporting undocumented immigrants whom federal law and policy allowed to remain in the United States, and placing buoys in the Rio Grande River. They relied on Article I, Section 10, Clause 3, of the Constitution, which states that “[n]o state shall, without the Consent of Congress, … engage in war, unless actually invaded, or in such imminent Danger as will not admit of delay.” Texas claimed illegal migration and drug smuggling qualify as an “invasion” and, accordingly, the Constitution empowers state military action even in the absence of congressional authorization for war.

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