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TRUMP’S DOUBLY FLAWED “INVASION” THEORY  
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Elizabeth Goitein and Katherine Yon Ebright
February 19, 2025
Just Security
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_ The President claims unprecedented authority to ignore and override
Congress and the Constitution whenever he proclaims an “invasion,”
real or metaphorical. He president is wrong about what an invasion
is—and what powers it triggers. _

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Throughout his campaign, President Donald Trump referred
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migration
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an “invasion.” Some interpreted this language
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a purely rhetorical device to drum up fear and to convey that
migrants, despite all evidence to the contrary, come to the United
States bent on violence and destruction. But national security and
immigration lawyers knew better. With each reference to the supposed
“invasion” across the United States’s southern border, we saw a
growing risk that Trump would try to misappropriate wartime laws for
peacetime immigration enforcement.

The truth turned out to be worse.

Trump’s migration-as-invasion theory permeates his executive orders
and other pronouncements on immigration. But he is not just using the
frame to try to exploit inapplicable wartime laws and constitutional
authorities, as damaging as that is. In at least one of his orders, he
is also using it to lay claim to vast presidential powers that don’t
exist in peacetime _or_ wartime, launching a direct assault on the
constitutional separation of powers and the rule of law.

To begin, one of Trump’s Day One orders tees up
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potential invocation of the Alien Enemies Act of 1798, a wartime law
that can be invoked in times of “invasion.”  The Act was last
used in World War II to intern 31,000 noncitizens of Japanese, German,
and Italian descent without due process. (U.S. citizens of Japanese
descent were interned under a separate authority.) If Trump invokes
the law—and if the courts uphold his invocation—it could empower
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to summarily detain and deport foreign nationals who are lawfully
present in the United States and have no criminal history.

This would be a clear abuse of the law. As explained in a recent
report
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the Brennan Center (where we work), the Alien Enemies Act’s powers
are available in response to a literal armed attack, not a figurative
or purely rhetorical “invasion.” The language and structure of the
law, as well as the congressional debate over its enactment, leave no
doubt on this point; the law refers to acts of “actual hostility”
and was intended to implement the law of war. The law has been used
only in times of declared war or, during World War II, in
the immediate wake
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Japan’s attack on Pearl Harbor.

In another Day One executive order, Trump directed the Secretary of
Defense to assign a new mission
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NORTHCOM, the combatant command for the U.S. armed forces in the North
American continent: “repelling forms of invasion including unlawful
mass migration, narcotics trafficking, human smuggling and
trafficking, and other criminal activities.” The order directs
NORTHCOM to plan a “campaign” for accomplishing this mission. It
cites no specific statutory authority; instead, it notes the
president’s “solemn responsibility” as “Chief Executive” and
“Commander in Chief of the Armed Forces” to protect “the
sovereignty and territorial integrity of the United States.”

Here, Trump appears to be relying on a longstanding and widely
accepted interpretation of the Constitution under which presidents
have inherent constitutional authority—and can act on a temporary
basis without congressional authorization—to repel invasions of the
United States. Like the Alien Enemies Act, however, this power is
reserved for armed attacks. During the Constitutional Convention, the
Founders explicitly referred
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this presidential prerogative as “the power to repel sudden
attacks” or “repel and not to commence war.” Nothing in the
Constitution remotely contemplates a presidential power to direct a
military campaign against civilians entering the country without
documentation.

As alarming as these executive orders are, the most far-reaching may
be the order
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purports to implement the Constitution’s “Guarantee Clause,”
under which the United States must protect the states against
invasions. As a threshold matter, Trump’s order again characterizes
migration as an invasion and therefore suffers from the same flaw as
the others. The courts have affirmed
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the Guarantee Clause’s protection against invasion applies in times
of “armed hostility from another political entity.”  It refers to
the federal government’s responsibility to defend states
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migration.

Diluting the meaning of “invasion” in the Guarantee Clause would
degrade
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protections across the board.  The Constitution
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to “invasion” in three other places: to describe appropriate
domestic uses of the military; to set the standard for suspending the
right to challenge unlawful imprisonments through _habeas corpus_;
and to authorize the states to “engage in War” without the
approval of the federal government.  These are exceptional powers
that must be wielded sparingly and responsibly, not in response to the
political outrage _du jour_.

But Trump’s Guarantee Clause order doesn’t simply rely on an
inapplicable clause of the Constitution.  Asserting a novel, sweeping
presidential authority in times of migrant “invasions,” the order
states that individuals coming across the southern border “are
restricted from invoking provisions of the [Immigration and
Nationality Act] that would permit their continued presence in the
United States,” including provisions of law that protect the right
to seek asylum. Although Trump relies primarily (and erroneously) on a
statutory provision for this directive, he also claims, in the
alternative, a constitutional authority to unilaterally suspend
congressionally enacted immigration law.

Even if an actual invasion were ongoing, Trump would not have that
authority. In the foundational separation-of-powers case _Youngstown
Sheet & Tube Co. v. Sawyer
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Court established that the president, during wartime as well as
peacetime, cannot bypass laws that Congress has constitutional
authority to enact—regardless of whether the president also has
constitutional authority in that area. The president may disregard
statutory constraints only if Congress is trespassing on powers that
the Constitution commits _exclusively_ to the president. There is no
question, however, that Congress has authority
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the Constitution to enact immigration laws, including laws that allow
undocumented individuals to seek asylum. The president accordingly
must follow those laws.

Trump’s executive orders are unprecedented in many respects.
Nonetheless, there are some lessons we can learn from history. This is
not the first time that a president has falsely claimed an
“invasion” across the southern border.  In 1846, President James
Polk proclaimed
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Mexican forces had “passed the boundary of the United States” and
“invaded our territory and shed American blood upon the American
soil.”  Within two days, he secured a congressional declaration of
war.

Although Polk correctly identified the elements of an
“invasion”—armed hostilities that require the government to meet
force with force—he lied about the facts.  Two years later, when
the truth came out, then-Representative Abraham Lincoln charged that
Polk had “unnecessarily and unconstitutionally
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secured a war authorization through misrepresentation.  Led by
Lincoln, the House of Representatives passed language to censure Polk
for unlawfully proclaiming an “invasion” to aggrandize
presidential power.

What Lincoln and his fellow lawmakers did was brave; the
Mexican-American War was still popular in 1848.  But they understood
that the U.S. system of government only works when the people can rely
on the president to faithfully execute the laws.

Today, the country faces an even graver situation.  The president has
not only misrepresented the facts; he has misrepresented the
Constitution itself.  He has claimed unprecedented authority to
ignore and override Congress whenever he proclaims an “invasion,”
real or metaphorical. Congress should muster the courage required by
these extraordinary times and condemn Trump’s radical attempts to
usurp and abuse power.

_(Editor’s note: This article is part of the Collection: Just
Security’s Coverage of the Trump Administration’s Executive
Actions
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_Elizabeth (Liza) Goitein
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[[link removed]]) co-directs the Brennan Center for
Justice’s Liberty and National Security Program, which seeks to
advance effective national security policies that respect
constitutional values and the rule of law. Before coming to the
Brennan Center, Ms. Goitein served as counsel to Senator Feingold,
Chairman of the Constitution Subcommittee of the Senate Judiciary
Committee._

_Katherine Yon Ebright
[[link removed]] (LinkedIn
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[[link removed]]) serves as counsel with the Brennan
Center’s Liberty & National Security Program, where she focuses on
war powers and the constitutional separation of powers. Before joining
the Brennan Center, Katherine served as a fellow at the Public
International Law & Policy Group and as a law clerk on the Second
Circuit and the Southern District of New York._

_Just Security [[link removed]] is an online
forum for the rigorous analysis of security, democracy, foreign
policy, and rights. Founded in 2013, we aim to promote principled and
pragmatic solutions to problems confronting decision-makers in the
United States and abroad. Our expert authors are individuals with
significant government experience, academics, civil society
practitioners, individuals directly affected by national security
policies, and other leading voices. Our Board of Editors includes a
broad range of leading experts on domestic and international law and
policy. Just Security is based at the Reiss Center on Law and
Security [[link removed]] at New York University
School of Law._

* Donald Trump
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* State of Emergency
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* U.S. Constitution
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* Presidential powers
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