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No longer just campaign trail rhetoric, President Donald Trump’s insistence that immigration to the United States amounts to an “invasion” may be critical to unlocking extraordinary powers as the administration carries out his deportation agenda.
Multiple executive orders and agency memos use the word “invasion” to describe why Trump is taking actions that tighten the US border, empower state and local officials to carry out immigration enforcement, and take a more aggressive approach to detaining and deporting migrants.
Some orders signed by Trump last week use “Invasion” in their titles, and one proclamation is built specifically around a constitutional provision that says the federal government is obligated to protect the states “against invasion.” In another early action, Trump issued a national emergency declaration the described an “invasion” at the border that “has caused widespread chaos and suffering in our country over the last 4 years.”
The word choice is intentional.
Legal experts believe the administration could try to rely on the invasion rationale to justify possible future actions that would go beyond the limits of immigration law and that would ignore the procedures in place for border-crossers.
“The invasion point comes in here, because the most basic and longstanding purpose to having a military is to stop people from invading your country. And that’s what’s happening at the southern border,” said Ken Cuccinelli, who served as the acting deputy secretary of Homeland Security in the first Trump administration. “The president doesn’t need anything beyond his commander in chief authority to block people from crossing the border illegally.”
It also previews how the Justice Department will defend his immigration agenda in court, hoping to capitalize on how courts have historically deferred to a president’s actions in instances of a national emergency.
“He is trying to invoke a fiction in order to increase the power of the president in ways that are completely inapplicable to this situation,” said Lucas Guttentag, a Stanford Law professor who founded the American Civil Liberties Union’s Immigrants’ Rights Project and who served in top roles in Democratic administration.
The language harkens to constitutional provisions that give federal government and states special powers in times of invasion. The possible invocation of the 1798 Alien Enemies Act is also hanging over how Trump’s anti-immigration agenda is being framed so far. That law, which Trump touted on the campaign trail, allows the federal government to depart from the usual procedures for detentions and deportations in a time of “Invasion or predatory incursion.”
“We are not there yet,” said Steve Vladeck, a CNN Supreme Court analyst and Georgetown University Law Center professor, but, “we may well be in for a very, very big, pitched legal battle over whether there really is an invasion along the southern border and what the legal consequences are of that are.”
In a statement, White House spokesperson Kush Desai said that “tens of millions of unvetted illegal migrants and literal tons of illicit drugs like fentanyl and methamphetamine poured over the southern border into American communities over the last four years.”
“That is an invasion, and the American people recognize that this the reality – that’s why they delivered a resounding mandate to President Trump to secure our border and communities,” Desai said.
A bigger role for states
The embrace of the invasion idea picks up on claims that states like Texas were making in legal disputes with the Biden administration over what role they could play in policing the border.
In addition to the Constitution’s guarantee that the federal government shall protect states from invasion, another provision allows states to engage in war when they are “actually invaded.”
“When you put those two things together, what do you get?” said Joshua Blackman, a professor at South Texas College of Law. “If a president declares an invasion, a state can engage in war.”
The argument could allow states to take actions that federal law would normally foreclose, Blackman said, but the proposition will have to be tested in court.
“It’s significant constitutional power that hasn’t really been discussed at all,” Blackman said.
The administration has emphasized it’s looking for help from the states in its efforts to arrest and detain undocumented immigrants. Last week, then-acting Homeland Security Secretary released a memo, pivoting off of Trump’s invasion-oriented executive orders, that made a finding of a “mass influx” of migrants to trigger new state authorities for immigration enforcement.
According to Vladeck, the administration’s use of such language gives “cover” to state officials like Texas Gov. Greg Abbott who have sought for their states to take a more direct role in immigration enforcement.
Texas, for instance, has used the “invasion” rationale in court to defend a state law, challenged by the Biden administration, that allows state officials to arrest and detain people suspected of entering the country illegally.
Sidestepping immigration law
Legal experts see the invasion motif as a signal for powers that Trump administration may seek to exercise to take his anti-immigration agenda even further and to potentially try to overcome laws imposed by Congress that traditionally dictate border policy.
Ilya Somin, a professor of law at George Mason University, pointed to past instances where courts struck down attempts to end all asylum procedures at the border, concluding such moves as violations of the Refugee Act.
“Part of the purpose of the invasion argument is they say, ‘Well, that overrides statutory constraints that Congress might otherwise put in place,’” Somin said.
The invasion language could also be “setting the stage” for invocation of the Alien Enemies Act, Vladeck said, referring to the 1798 statute last used during World War II that would let the government eschew the due process protections afforded to immigrants before they can be deported.
The law was referenced in a Trump executive order last week that designated cartels as foreign terrorist organizations.
Already, Trump is repeating a playbook he used in his first administration to get around the congressional appropriations process. With another measure signed last week, Trump declared a national emergency at the border, in effort to direct military resources towards border security. Trump faced lawsuits when he used a similar maneuver during his first term to funnel Defense Department funding towards building a border wall.
Courts may be more willing to defer to this kind of gambit than other Trump efforts to get around federal law, said Matthew Lindsay, a University of Baltimore School of Law professor. He noted, however, that the immigration crisis is not what it was 2023 in, as the numbers of border crossing have dropped considerably since that highpoint.
“Lurking behind this, there is a real separation of powers question about what extent courts are going to be keeping Congress involved in the types of appropriations decisions Congress passes,” he said.
Will courts see the invasions play as a ‘political question’?
A key question underlying Trump’s strategy will be whether courts believe they can review a president’s determination that an influx of migrants can qualify as an “invasion” or if they see that as the type of “political question” they have no power to decide.
If they chose the latter course, “that would give the president a blank check to declare an invasion pretty much anytime he wants, and then use that to suspend everyone’s civil liberties,” Somin said.
One prominent judge has recently floated the idea. In a 5th US Circuit Court of Appeals ruling last summer siding with Texas in a dispute with the Biden administration over buoys the state placed in the Rio Grande, Judge James Ho wrote a partial dissent that seemed to embrace an invasion justification being put forward by the state, while describing the invasion determination as a political question that was not up courts to decide.
“Ho is the only federal judge, of the ones who have considered the issue, to have to some extent, at least, endorsed the invasion argument,” Somin said. “Everyone else has rejected it.”
Ho, seen as on the shortlist for possible Supreme Court nominees if Trump is given an opening on the high court, also recently floated the invasion idea as a possible exception to the principle of birthright citizenship, which Trump is trying to end for children born to undocumented immigrants or temporary visa holders.
Supporters of Trump’s agenda are confident courts will defer to his determination that an invasion is occurring at the southern border. Other legal experts who are more skeptical say the context in which he is making the argument will likely matter a great deal.
“It may just depend on their appetite for just standing by and allowing the administration to accumulate these instances of unchecked authority,” Lindsay said.
CNN’s Priscilla Alavarez contributed to this report.
