Trump’s Awful New “Invasion” Executive Order is One of His Darkest Yet
The blitzkrieg of executive actions that President Donald Trump signed on day one was fully intended to be disorienting in its scope of horrors, and it is delivering. They would end birthright citizenship in the United States, pull us out of the Paris climate agreement, facilitate the wholesale purging of insufficiently loyal government workers, and pardon hundreds of rioters who attacked the Capitol, including those who violently savaged cops. That’s only a very partial list.
But one executive order in particular is quietly drawing attention from immigration lawyers because of its unusually radical implications. It appears to declare that Trump’s authority to seal the Southern border and entirely nullify the right to seek asylum exists wholly independent of any statute and is rooted in his constitutional powers, all because we are allegedly coping with a migrant “invasion.” What determines whether we’re subject to an “invasion,” you ask? Trump declaring it to be so, that’s what.
This suggests that Trump and his team may be laying the groundwork to argue, to an unprecedented degree, that he is largely unbounded by Congress in executing key aspects of his immigration agenda. The justification of this on “invasion” grounds also suggests something else: The government will be corrupted deeply to produce outright propaganda designed to sustain the impression of that “invasion.”
The relevant provision is buried in this new executive order, which declares that Trump is closing the country to migrants on grounds that they constitute an “invasion across the southern border.” Critically, the order also says that migrants who are “engaged” in this invasion no longer can seek asylum protections—ones authorized under the Immigration and Nationality Act, or INA—until Trump issues “a finding that the invasion at the southern border has ceased.”
The sloppily written order doesn’t define precisely who constitutes a migrant engaged in this invasion. In other words, Trump appears essentially to be declaring an open-ended power to say that any and all migrants who enter unlawfully do constitute invaders. Trump can suspend the INA’s provisions mandating certain treatment of these migrants for as long as he says the “invasion” is underway.
The order gives several rationales for this. One is that migrants could be “potentially carrying communicable diseases.” That’s more radical than the Title 42 Covid-19 restrictions on entry—which Trump originally instituted and Joe Biden kept in place—as those relied on a governmentally declared public health emergency. This new order merely rests on the possibility of migrants carrying diseases. Putting aside history’s dark lessons about the consequences of casting migrants as bearers of disease, there’s no documented link between migrants and such diseases to begin with, as the Cato Institute’s Alex Nowrasteh details.
The order’s other rationale may be even more dangerous. It says that the Constitution gives Trump the authority—pursuant to conducting foreign affairs and protecting states from invasion—to take any actions he deems necessary to “achieve the objectives of this proclamation,” i.e., halt or reverse the “invasion” by migrants. That seems to apply to anyone who enters the country illegally after the signing of the order. Under it, Trump would not be bound by congressional statute in determining what to do with them, immigration lawyers tell me.
“Whereas previous administrations imposed bans like this using specific statutory authorities, this may be the first time a president has claimed the power to impose such a ban based on their constitutional authority to conduct foreign affairs,” Tom Jawetz, a former senior Homeland Security lawyer, told me. He added that Trump is effectively declaring that “inherent authority to override the nation’s immigration laws resides in the president.”
“Trump claims to have a power in the Constitution that lets him suspend entire acts of Congress,” added American Immigration Council senior fellow Aaron Reichlin-Melnick. “Immigrants taken into custody have rights. No president can erase immigration law with the stroke of a pen.”
At a minimum, this should prompt tough questioning for administration officials: What limits do Trump and his advisers acknowledge on his powers to repel the “invaders,” if any?
“The president’s claim that he can simply declare an invasion and thereby eliminate asylum on his own constitutional authority puts us in dangerous and uncharted territory,” said Lee Gelernt, a specialist in immigration law at the ACLU.
It should be noted that Biden’s draconian policies did indefensibly restrict a lot of asylum-seeking, but there was still a statutory underpinning for it. Trump is going for something much more far-reaching. As Slate’s Mark Joseph Stern recently argued, the long-term game plan of Trump and the MAGA legal establishment may be to try to get courts to declare the question of whether we’re enduring a migrant “invasion” a political one that’s not subject to judicial review, unlocking sweeping, unfettered new powers. This order may be a big stab in that direction.
Making all this more absurd, Trump’s order asks us to believe that at some future point, he will willingly declare that the “invasion” has “ceased.” Yet even as he issued the order, border apprehensions are on track this month to drop again to levels rivaling the summer of 2020, the last year of Trump’s first term. While one can argue that this isn’t low enough, if Trump is declaring this an ongoing “invasion,” then it seems self-evident that he’ll never allow that the “invasion” has ended.
Which is where government propaganda will come in. This new order makes it clear that Trump officials will be under pressure to produce information illustrating both that migrants are bearing communicable diseases and that the “invasion” is in full swing. You’d think this might conflict with Trump’s desire to show that his “strength” has achieved border pacification: How will he demonstrate both that border crossings are down and that we continue to be “invaded”?
Easy: Low numbers on crossings will coexist with a drumbeat of anecdotal stories about “migrant crimes,” pumped up with the force of government agencies and perhaps even the White House press operation, willingly blared forth by right-wing media. The latter will convey the desired “invasion” effect even as Trump hails low crossings as proof of his success. If you think this disconnect will perturb MAGA, you’re not paying attention.
We’re already seeing a glimpse of what this could look like. The Wall Street Journal reports that Trump was planning a large-scale deportation operation in Chicago for this week. It was canceled after word of it leaked. But it’s still revealing: Trump’s transition team picked Chicago to target a “sanctuary city”—and because he’s feuding with Chicago’s Democratic mayor. This again suggests deportations may be deployed selectively and corruptly, targeted at blue areas and at political enemies, while migrant labor employed by MAGA oligarchs and in red areas secures forbearance.
What’s more, the Journal reports, Trumpworld had planned to enlist right-wing media to “amplify” the Chicago raid’s effects. Translation: Footage of thrilling deportations in cities supposedly infested with “migrant crime” will be handed out to friendly propagandists to keep feeding the impression of this “invasion.”
You see, we are being “invaded” if Trump says so, which in turn grants him extraordinary new powers against the “invaders.” Why would he ever say otherwise?