C_Clayton_Jones
Diamond Member
âThroughout his campaign, President Donald Trump referred to unlawful migration as an âinvasion.â Some interpreted this language as 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 âinvasionâ across the United Statesâs 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.
Trumpâs 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 donât exist in peacetime or wartime, launching a direct assault on the constitutional separation of powers and the rule of law.
To begin, one of Trumpâs Day One orders tees up a potential invocation of the Alien Enemies Act of 1798, a wartime law that can be invoked in times of âinvasion.â 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 lawâand if the courts uphold his invocationâit could empower him 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 from the Brennan Center (where we work), the Alien Enemies Actâs powers are available in response to a literal armed attack, not a figurative or purely rhetorical âinvasion.â 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 âactual hostilityâ 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 of Japanâs attack on Pearl Harbor.â
www.justsecurity.org
Trumpâs migration-as-invasion theory is a lie motivated by racism, bigotry, and hate.
The United States isnât being âinvadedâ â by migrants or anyone else.
The truth turned out to be worse.
Trumpâs 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 donât exist in peacetime or wartime, launching a direct assault on the constitutional separation of powers and the rule of law.
To begin, one of Trumpâs Day One orders tees up a potential invocation of the Alien Enemies Act of 1798, a wartime law that can be invoked in times of âinvasion.â 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 lawâand if the courts uphold his invocationâit could empower him 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 from the Brennan Center (where we work), the Alien Enemies Actâs powers are available in response to a literal armed attack, not a figurative or purely rhetorical âinvasion.â 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 âactual hostilityâ 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 of Japanâs attack on Pearl Harbor.â
Trumpâs Doubly Flawed "Invasion" Theory
How Trump's migration-as-invasion theory might serve as a pretext for claiming vast presidential powers and upending constitutional norms.
www.justsecurity.org
Trumpâs migration-as-invasion theory is a lie motivated by racism, bigotry, and hate.
The United States isnât being âinvadedâ â by migrants or anyone else.
