President Trump’s order concerning an invasion at the southern border is the most full-throated endorsement of Article II powers I’ve seen in some time.
First, the opinion cites U.S. ex rel. Knauff v. Shaughnessy (1950), which recognized that “The exclusion of aliens is a fundamental act of sovereignty . . . [that] is inherent in the executive power to control the foreign affairs of the nation.” During the travel ban litigation, several litigants suggested that this case was no longer good law. But Trump is invoking it, head-on.
Second, Trump explains one of the grand bargains behind the Constitution:
In joining the Union, the States agreed to surrender much of their sovereignty and join the Union in exchange for the Federal Government’s promise in Article IV, Section 4 of the U.S. Constitution, to “protect each of [the States] against Invasion.”
This provision is part of the seldom-studied guarantee clause.
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
It is widely understood under Luther v. Borden that a determination under the Guarantee Clause is a political question. Then again, in 2021, none of the Justices could remember the name of the case, and Tara Grove has challenged that conventional wisdom. If a finding of an invasion is a political question, there is little for the judiciary to do to second guess that finding–that includes Judge Ezra, who I suspect will be a lot less busy over the next four years.
Third, Trump concludes that the federal government has failed this obligation.
I have determined that the current state of the southern border reveals that the Federal Government has failed in fulfilling this obligation to the States and hereby declare that an invasion is ongoing at the southern border, which requires the Federal Government to take measures to fulfill its obligation to the States.
This finding is significant. Texas has argued there is an invasion, which activates certain powers in Article I, Section 10, Clause 3. Specifically, a state can “engage in War, [when] actually invaded.” And Trump has made a declaration of invasion. I am skeptical that the courts can second-guess this finding. Judge Ho addressed this point in United States v. Abbot:
Courts have no business deciding which national security threats are sufficiently serious to warrant a military response, and which are not. Supreme Court precedent and longstanding Executive Branch practice confirm that, when a President decides to use military force, that’s a nonjusticiable political question not susceptible to judicial reversal. I see no principled basis for treating such authority differently when it’s invoked by a Governor rather than by a President. If anything, a State’s authority to “engage in War” in response to invasion “without the Consent of Congress” is even more textually explicit than the President’s.
Whatever role the Governor has to declare an invasion, I think it pretty clear that the President can declare an invasion. And this determination would seem to be a political question.
Fourth, Trump argues that the INA does not “occupy the field,” and the President retains inherent authority to exclude and remove invading aliens:
The INA does not, however, occupy the Federal Government’s field of authority to protect the sovereignty of the United States, particularly in times of emergency when entire provisions of the INA are rendered ineffective by operational constraints, such as when there is an ongoing invasion into the States. The President’s inherent powers to control the borders of the United States, including those deriving from his authority to control the foreign affairs of the United States, necessarily include the ability to prevent the physical entry of aliens involved in an invasion into the United States, and to rapidly repatriate them to an alternative location. Only through such measures can the President guarantee the right of each State to be protected against invasion.
And Trump uses this power to block entry of all invaders at the southern border:
By the power vested in me by the Constitution and the laws of the United States, I have determined that the current situation at the southern border qualifies as an invasion under Article IV, Section 4 of the Constitution of the United States. Accordingly, I am issuing this Proclamation based on my express and inherent powers in Article II of the Constitution of the United States, and in faithful execution of the immigration laws passed by the Congress, and suspending the physical entry of aliens involved in an invasion into the United States across the southern border until I determine that the invasion has concluded.
Fifth, Trump is making an Article II override argument. Specifically, separate and apart from Section 1182(f), the President has inherent power to deny entry to invaders, and repatriate them elsewhere. Trump uses this argument to override other statutory protections:
Sec. 2. Imposition of Restrictions on Entry for Aliens Invading the United States. I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), that aliens engaged in the invasion across the southern border of the United States on or after the date of this proclamation are restricted from invoking provisions of the INA that would permit their continued presence in the United States, including, but not limited to, section 208 of the INA, 8 U.S.C. 1158, until I issue a finding that the invasion at the southern border has ceased.
Section 1158 concerns asylum. Yes, Trump is arguing his Article II power overrides congressional asylum protections, some of which may in fact implement treaties. This provision is like an exam fact pattern to test the Supremacy Clause.
Sixth, Trump also delegates his full constitutional authority to the Secretary of Homeland Security to stop the invasion:
Sec. 4. Constitutional Suspension of Physical Entry. Under the authorities provided to me under Article II of the Constitution of the United States, including my control over foreign affairs, and to effectuate the guarantee of protection against invasion required by Article IV, Section 4, I hereby suspend the physical entry of any alien engaged in the invasion across the southern border of the United States, and direct the Secretary of Homeland Security, in coordination with the Secretary of State and the Attorney General, to take appropriate actions as may be necessary to achieve the objectives of this proclamation, until I issue a finding that the invasion at the southern border has ceased.
This is a sweeping delegation of authority from the President to his cabinet.
Specifically, the Secretary can “repel, repatriate, or remove” aliens, as provided for by Article II of the Constitution:
Sec. 5. Operational Actions to Repel the Invasion. The Secretary of Homeland Security, in coordination with the Secretary of State and the Attorney General, shall take all appropriate action to repel, repatriate, or remove any alien engaged in the invasion across the southern border of the United States on or after the date of this order, whether as an exercise of the suspension power in section 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), or as an exercise of my delegated authority under the Constitution of the United States, until I issue a finding that the invasion at the southern border has ceased.
Unlike some of the other orders, which go into effect in the future, the invasion order is effective immediate. I have not seen a challenge, yet.
The birthright citizenship order has been getting the most attention. But the invasion order arises in the area of most constitutional uncertainty. There just isn’t much law to go on here, and the courts will flounder trying to decide these issues.
