The ‘Invasion’ Invention: The Far Right’s Long Legal Battle to Make Immigrants the Enemy

This story was initially printed by ProPublica.
By Molly Redden
When prime Trump adviser Stephen Miller threatened on Might 9 that the administration is “actively ” suspending habeas corpus in response to an “invasion” from undocumented immigrants, he was working on a fringe authorized concept {that a} right-wing faction has been working to legitimize for greater than a decade.

“The Structure is obvious — and that in fact is the supreme regulation of the land — that the privilege of the writ of habeas corpus may be suspended in a time of invasion,” Miller said earlier this month in response to a query about Trump’s menace to droop habeas corpus, the authorized proper of a prisoner to problem their detention. Days after Miller’s remarks, Homeland Safety Secretary Kristi Noem issued the same warning when a member of a Home panel requested her if the variety of unlawful border crossings meets the edge for suspending the correct. “I’m not a constitutional lawyer,” Noem mentioned. “However I consider it does.”

Laborious-liners have referred to immigrants as “invaders” so long as the U.S. has had immigration. By 2022, invasion rhetoric, which had beforehand been relegated to white nationalist circles, had turn into such a staple of Republican campaign ads that most of the public agreed an invasion of the U.S. through the southern border was underway.

Now, nonetheless, the declare that the U.S. is underneath invasion has turn into the authorized linchpin of President Donald Trump’s sweeping anti-immigrant marketing campaign.

The declare is Trump’s central justification for invoking the Alien Enemies Act to deport roughly 140 Venezuelans to CECOT, the Salvadoran megaprison, with out due course of. (The administration cited totally different authorized authority for the remaining deportees.) The Trump administration contends they’re members of a gang, Tren de Aragua, that Venezuelan President Nicolás Maduro is directing to infiltrate and function in the USA. Attorneys and households of most of the deportees have presented evidence the prisoners should not even members of Tren de Aragua.

The rivalry can also be the throughline of Trump’s day one executive order “Defending the American Folks In opposition to Invasion.” That doc requires the enlargement of immigration removing proceedings with out court docket hearings and for authorized assaults towards sanctuary jurisdictions, locations that refuse to commit native sources to immigration enforcement.

Thus far, no court docket has purchased the concept that the U.S. is actually underneath invasion, as outlined by the Structure or the Alien Enemies Act, on the handful of events the federal government has used the argument to justify supercharged immigration enforcement. 4 federal judges, together with one Trump appointee, have mentioned the scenario Trump describes fails to meet the definition of an invasion. Tren de Aragua “might be engaged in narcotics trafficking, however that may be a felony matter, not an invasion or predatory incursion,” U.S. District Judge Alvin Hellerstein wrote. Certainly, Trump’s personal intelligence businesses found that Maduro is not directing the gang. The Supreme Court docket has not dominated on the query however froze any more deportations with out due course of on Might 16.

The Trump authorized push has been within the works for years. After Trump left the White Home, two of his loyalists, former Homeland Safety official Ken Cuccinelli and his now-two-time finances chief Russell Vought, quietly constructed a consensus for the invasion authorized concept amongst state Republican officers and in the end helped persuade Texas to present it a take a look at run in court docket.

Most authorized students reject the concept that the wave of undocumented immigration matches the unique definition of what an invasion is, however they fear nonetheless. When U.S. District Choose Stephanie L. Haines, a Trump appointee, issued a preliminary ruling earlier this month that allowed Trump to invoke the Alien Enemies Act, she didn’t label immigrants “invaders.” As an alternative, she proposed that Tren de Aragua was “the trendy equal of a pirate or a robber.”

If the Supreme Court docket in the end takes up the invasion query, a ruling like Haines’ presents a blueprint for sidestepping the problem whereas giving Trump what he needs, or for embracing the invasion concept wholesale, authorized students mentioned.

“All this actually comes all the way down to the problem of whether or not the USA Supreme Court docket goes to permit a president to behave basically as an autocratic dictator if he’s ready to make completely fictitious factual declarations that set off monarchical energy,” mentioned Frank Bowman, a authorized historian and professor emeritus on the College of Missouri College of Regulation.

Underneath the Structure, if the USA is invaded, Congress has the facility to name up the militia and may enable the suspension of habeas corpus, the constitutional proper that’s the core of due course of. The states, that are usually forbidden from unilaterally participating in conflict, can achieve this in response to the Structure if they’re “really invaded.”

The Alien Enemies Act, an 18th century wartime regulation enacted throughout a naval battle with France, additionally rests on the definition of an invasion. It permits the president to expel “aliens” throughout “any invasion or predatory incursion … by any overseas nation or authorities.” It has only ever been invoked three times, in the course of the Warfare of 1812 and World Wars I and II.

Habeas corpus has likewise been suspended solely a handful of times within the Structure’s practically 240-year historical past, together with throughout Reconstruction, to place down violent rebellions within the South by the Ku Klux Klan; in 1905, to suppress the Moro rebellion towards U.S. management of the Philippines; and in Hawaii after Pearl Harbor in an effort to place Japanese People under martial law. In every of those instances, the chief department acted after receiving permission from Congress.

An exception was in 1861, when President Abraham Lincoln unilaterally suspended habeas corpus on the outbreak of the Civil Warfare. This provoked a direct confrontation with Supreme Court docket Chief Justice Roger Taney, who dominated that solely Congress was empowered to take such a unprecedented step. Congress later papered over the battle by voting to present Lincoln the authority for the conflict’s period.

At this time, practically each historian and constitutional scholar is in settlement that, in relation to suspending habeas, Congress has the facility to resolve if the situations are met.

“The Structure doesn’t vest this energy within the President,” future Supreme Court docket Justice Amy Coney Barrett wrote in 2014. “Students and courts have overwhelmingly endorsed the place that, Lincoln’s unilateral suspensions of the writ however, the Structure offers Congress the unique authority to resolve when the predicates specified by the Suspension Clause are glad.” Even then, the Structure solely permits Congress to behave in excessive circumstances — “when in Instances of Riot or Invasion the general public Security could require it.”

Ilya Somin, a regulation professor at George Mason College who has intently adopted these arguments, argues there’s virtually no evidence that the drafters of the Structure considered an “invasion” as something aside from the sort of organized incursion that may historically spark a conflict.

“The unique which means of ‘invasion’ within the Structure is definitely what kind of the typical regular particular person would suppose it means,” Somin mentioned. “As James Madison put it, invasion is an operation of conflict. What Vladimir Putin did to Ukraine, that’s an invasion. What Hamas did to Israel, that’s an invasion. Then again, unlawful migration, or drug smuggling, or odd crime — that’s not an invasion.”

In 1994, Florida Democratic Gov. Lawton Chiles Jr. filed the primary modern-day lawsuit arguing in any other case. The Haitian and Cuban refugee crises had spawned a brand new wave of anti-immigration sentiment, and hard-liners accused the federal authorities of owing states billions for dealing with immigrants’ supposed crimes and welfare claims. Chiles, who died in 1998, took the idea one step additional. He filed a $1.5 billion suit claiming the U.S. had violated the part of the Structure stating the federal authorities “shall shield every [state] towards Invasion.”

Federal courts slapped down his lawsuit — and a spate of copycat suits from Arizona, California, New York and New Jersey — and the authorized case for calling immigration an invasion died out.

Within the late 2000s, a bunch of far-right voices started to revive this method. Ken Cuccinelli was among the many first and most strident. He was an early member of State Legislators for Authorized Immigration, a part of a powerful network of anti-immigration groups that pioneered efforts like ending birthright citizenship. The group contended that immigrants had been “overseas invaders” as described within the Structure.

Cuccinelli evangelized for the theory as he rose from a state legislator to an official in Trump’s first Division of Homeland Safety.

“Underneath conflict powers, there’s no due course of,” Cuccinelli instructed Breitbart radio shortly earlier than his appointment within the first Trump administration. “They will actually simply line their Nationwide Guard up with, presumably with riot gear like they might if that they had a civil disturbance, and switch individuals again on the border. … You simply level them again throughout the river and allow them to swim for it.”

Cuccinelli received traction after Trump’s reelection loss. He joined a suppose tank Vought had based as its immigration level man. Throughout his time within the first Trump administration, Vought grew to become pissed off that the president’s targets had been steadily thwarted. He based the Heart for Renewing America, devoted to a sweeping imaginative and prescient of remaking the federal government and society — what in the end grew to become Mission 2025.

In remarks to a personal viewers at his suppose tank in 2023, Vought, who’s now Trump’s finances chief and the mental pressure behind Trump’s unprecedented government energy seize, mentioned he particularly championed the time period “invasion” as a result of it “unlocked” extraordinary presidential powers.

“One of many explanation why we had been very, so insistent about developing with the entire notion of the border being an ‘invasion’ as a result of there have been Constitutional authorities that had been part of with the ability to name it an invasion,” Vought mentioned. Documented and ProPublica obtained videos of Vought’s speech final yr. Vought and Cuccinelli didn’t reply to requests for remark.

In 2021 and 2022, Cuccinelli, with Vought’s assist, mounted press conferences and privately urged Gov. Doug Ducey of Arizona and Gov. Greg Abbott of Texas to proclaim that their states had been being invaded.

After Arizona’s then-attorney common, Mark Brnovich, launched a authorized opinion in February 2022 proclaiming violent cartels had “really invaded” and opened the door for Ducey to deploy the state’s Nationwide Guard, Vought bragged to his viewers that he and Cuccinelli had personally offered draft language for the opinion. In a earlier e-mail to ProPublica, Brnovich acknowledged chatting with Cuccinelli however mentioned his opinion was “drafted and written by laborious working attorneys (together with myself) in our workplace.”

Ducey by no means acted on the invasion concept. However Abbott was extra receptive. He invoked the state’s conflict powers, citing the “really invaded” clause, in a 2022 open letter to President Joe Biden. “Two years of inaction in your half now depart Texas with no selection,” he wrote. Andrew Mahaleris, a spokesperson for Abbott, mentioned the governor “declared an invasion because of the Biden Administration’s repeated failures in upholding its constitutional obligation to safe the border and defend states.”

Abbott ordered the banks of the Rio Grande river to be strung with razor wire and a shallow part to be obstructed by a 1,000-foot string of man-sized buoys and blades and signed a regulation, S.B. 4, giving state authorities the facility to deport undocumented immigrants.

When the Justice Division sued, Abbott’s administration argued in authorized briefs that its actions had been justified partially as a result of his state was underneath “invasion.” Twenty-three Republican attorneys common filed a brief in settlement.

“In each scope and impact, the wave of unlawful migrants pouring throughout the border is like an invasion,” their transient learn. “The Structure’s textual content, the precept of sovereignty within the federal design, and the broader constitutional construction all assist the conclusion that the States have a sturdy proper to have interaction in self-defense. Contained inside that proper is presumptively acts to repel invasion.”

Texas’ invasion argument didn’t prevail. The fifth Circuit has blocked S.B. 4., and a decrease court docket and a three-judge panel skewered Abbott’s constitutional argument within the buoy case. In 2024, the complete fifth Circuit dominated underneath one other regulation that Abbott was entitled to go away the floating limitations in place. It averted ruling on Texas’ invasion declare altogether — however not with out one choose dissenting. Trump appointee James Ho argued courts have no ability to second-guess executives about which threats rise to the extent of an invasion and justify army motion.

In his speech, Vought credited “the huge take-up price” of the invasion authorized concept to his and Cuccinelli’s behind-the-scenes efforts. Now the idea is being taken significantly by the president’s prime advisers as they threaten to upend a core civil liberty.

“The definition of ‘invasion’ has broad implications for civil liberties — that’s fairly apparent,” Somin mentioned. “They’re making an attempt to make use of this as a instrument to get round constitutional and different authorized constraints on deportation and exclusion that may in any other case exist. However in addition they wish to use it to undermine civil liberties” for U.S. residents.

Molly Redden is overlaying authorized affairs and the way the second Trump administration is making an attempt to reshape the authorized system. You’ll be able to ship her ideas at molly.redden@propublica.org or through Sign at mollyredden.14.