By Molly Redden
When top Trump adviser Stephen Miller threatened on May 9 that the administration is “actively looking at” suspending habeas corpus in response to an “invasion” from undocumented immigrants, he was operating on a fringe legal theory that a right-wing faction has been working to legitimize for more than a decade.
“The Constitution is clear — and that of course is the supreme law of the land — that the privilege of the writ of habeas corpus can be suspended in a time of invasion,” Miller said earlier this month in response to a question about Trump’s threat to suspend habeas corpus, the legal right of a prisoner to challenge their detention. Days after Miller’s remarks, Homeland Security Secretary Kristi Noem issued the same warning when a member of a House panel asked her if the number of illegal border crossings meets the threshold for suspending the right. “I’m not a constitutional lawyer,” Noem said. “But I believe it does.”
Hard-liners have referred to immigrants as “invaders” as long as the U.S. has had immigration. By 2022, invasion rhetoric, which had previously been relegated to white nationalist circles, had become such a staple of Republican campaign ads that most of the public agreed an invasion of the U.S. via the southern border was underway.
Now, however, the claim that the U.S. is under invasion has become the legal linchpin of President Donald Trump’s sweeping anti-immigrant campaign.
The claim is Trump’s central justification for invoking the Alien Enemies Act to deport roughly 140 Venezuelans to CECOT, the Salvadoran megaprison, without due process. (The administration cited different legal authority for the remaining deportees.) The Trump administration contends they are members of a gang, Tren de Aragua, that Venezuelan President Nicolás Maduro is directing to infiltrate and operate in the United States. Lawyers and families of many of the deportees have presented evidence the prisoners are not even members of Tren de Aragua.
The contention is also the throughline of Trump’s day one executive order “Protecting the American People Against Invasion.” That document calls for the expansion of immigration removal proceedings without court hearings and for legal attacks against sanctuary jurisdictions, places that refuse to commit local resources to immigration enforcement.
So far, no court has bought the idea that the U.S. is truly under invasion, as defined by the Constitution or the Alien Enemies Act, on the handful of occasions the government has used the argument to justify supercharged immigration enforcement. Four federal judges, including one Trump appointee, have said the situation Trump describes fails to meet the definition of an invasion. Tren de Aragua “may well be engaged in narcotics trafficking, but that is a criminal matter, not an invasion or predatory incursion,” U.S. District Judge Alvin Hellerstein wrote. Indeed, Trump’s own intelligence agencies found that Maduro is not directing the gang. The Supreme Court has not ruled on the question but froze any more deportations without due process on May 16.
The Trump legal push has been in the works for years. After Trump left the White House, two of his loyalists, former Homeland Security official Ken Cuccinelli and his now-two-time budget chief Russell Vought, quietly built a consensus for the invasion legal theory among state Republican officials and ultimately helped persuade Texas to give it a test run in court.
Most legal scholars reject the idea that the wave of undocumented immigration fits the original definition of what an invasion is, but they worry nonetheless. When U.S. District Judge Stephanie L. Haines, a Trump appointee, issued a preliminary ruling earlier this month that allowed Trump to invoke the Alien Enemies Act, she did not label immigrants “invaders.” Instead, she proposed that Tren de Aragua was “the modern equivalent of a pirate or a robber.”
If the Supreme Court ultimately takes up the invasion question, a ruling like Haines’ offers a blueprint for sidestepping the issue while giving Trump what he wants, or for embracing the invasion theory wholesale, legal scholars said.
“All this really comes down to the issue of whether the United States Supreme Court is going to allow a president to behave essentially as an autocratic dictator if he’s prepared to make entirely fictitious factual declarations that trigger monarchical power,” said Frank Bowman, a legal historian and professor emeritus at the University of Missouri School of Law.
Under the Constitution, if the United States is invaded, Congress has the power to call up the militia and can allow the suspension of habeas corpus, the constitutional right that is the core of due process. The states, which are normally forbidden from unilaterally engaging in war, can do so according to the Constitution if they are “actually invaded.”
The Alien Enemies Act, an 18th century wartime law enacted during a naval conflict with France, also rests on the definition of an invasion. It allows the president to expel “aliens” during “any invasion or predatory incursion … by any foreign nation or government.” It has only ever been invoked three times, during the War of 1812 and World Wars I and II.
Habeas corpus has likewise been suspended only a handful of times in the Constitution’s nearly 240-year history, including during Reconstruction, to put down violent rebellions in the South by the Ku Klux Klan; in 1905, to suppress the Moro uprising against U.S. control of the Philippines; and in Hawaii after Pearl Harbor in order to place Japanese Americans under martial law. In each of these cases, the executive branch acted after receiving permission from Congress.
An exception was in 1861, when President Abraham Lincoln unilaterally suspended habeas corpus at the outbreak of the Civil War. This provoked a direct confrontation with Supreme Court Chief Justice Roger Taney, who ruled that only Congress was empowered to take such an extraordinary step. Congress later papered over the conflict by voting to give Lincoln the authority for the war’s duration.
Today, nearly every historian and constitutional scholar is in agreement that, when it comes to suspending habeas, Congress has the power to decide if the conditions are met.
“The Constitution does not vest this power in the President,” future Supreme Court Justice Amy Coney Barrett wrote in 2014. “Scholars and courts have overwhelmingly endorsed the position that, Lincoln’s unilateral suspensions of the writ notwithstanding, the Constitution gives Congress the exclusive authority to decide when the predicates specified by the Suspension Clause are satisfied.” Even then, the Constitution only allows Congress to act in extreme circumstances — “when in Cases of Rebellion or Invasion the public Safety may require it.”
Ilya Somin, a law professor at George Mason University who has closely followed these arguments, argues there is virtually no evidence that the drafters of the Constitution thought of an “invasion” as anything other than the kind of organized incursion that would traditionally spark a war.
“The original meaning of ‘invasion’ in the Constitution is actually what sort of the average normal person would think it means,” Somin said. “As James Madison put it, invasion is an operation of war. What Vladimir Putin did to Ukraine, that’s an invasion. What Hamas did to Israel, that’s an invasion. On the other hand, illegal migration, or drug smuggling, or ordinary crime — that’s not an invasion.”
In 1994, Florida Democratic Gov. Lawton Chiles Jr. filed the first modern-day lawsuit arguing otherwise. The Haitian and Cuban refugee crises had spawned a new wave of anti-immigration sentiment, and hard-liners accused the federal government of owing states billions for handling immigrants’ supposed crimes and welfare claims. Chiles, who died in 1998, took the concept one step further. He filed a $1.5 billion suit claiming the U.S. had violated the section of the Constitution stating the federal government “shall protect each [state] against Invasion.”
Federal courts slapped down his lawsuit — and a spate of copycatsuits from Arizona, California, New York and New Jersey — and the legal case for calling immigration an invasion died out.
In the late 2000s, a group of far-right voices began to revive this approach. Ken Cuccinelli was among the first and most strident. He was an early member of State Legislators for Legal Immigration, part of a powerful network of anti-immigration groups that pioneered efforts like ending birthright citizenship. The organization contended that immigrants were “foreign invaders” as described in the Constitution.
Cuccinelli evangelized for the theory as he rose from a state legislator to an official in Trump’s first Department of Homeland Security.
“Under war powers, there’s no due process,” Cuccinelli told Breitbart radio shortly before his appointment in the first Trump administration. “They can literally just line their National Guard up with, presumably with riot gear like they would if they had a civil disturbance, and turn people back at the border. … You just point them back across the river and let them swim for it.”
Cuccinelli got traction after Trump’s reelection loss. He joined a think tank Vought had founded as its immigration point man. During his time in the first Trump administration, Vought became frustrated that the president’s goals were frequently thwarted. He founded the Center for Renewing America, dedicated to a sweeping vision of remaking the government and society — what ultimately became Project 2025.
In remarks to a private audience at his think tank in 2023, Vought, who is now Trump’s budget chief and the intellectual force behind Trump’s unprecedented executive power grab, said he specifically championed the term “invasion” because it “unlocked” extraordinary presidential powers.
“One of the reasons why we were very, so insistent about coming up with the whole notion of the border being an ‘invasion’ because there were Constitutional authorities that were a part of being able to call it an invasion,” Vought said. Documented and ProPublica obtained videos of Vought’s speech last year. Vought and Cuccinelli did not respond to requests for comment.
In 2021 and 2022, Cuccinelli, with Vought’s help, mounted press conferences and privately urged Gov. Doug Ducey of Arizona and Gov. Greg Abbott of Texas to proclaim that their states were being invaded.
After Arizona’s then-attorney general, Mark Brnovich, released a legal opinion in February 2022 proclaiming violent cartels had “actually invaded” and opened the door for Ducey to deploy the state’s National Guard, Vought bragged to his audience that he and Cuccinelli had personally provided draft language for the opinion. In a previous email to ProPublica, Brnovich acknowledged speaking to Cuccinelli but said his opinion was “drafted and written by hard working attorneys (including myself) in our office.”
Ducey never acted on the invasion theory. But Abbott was more receptive. He invoked the state’s war powers, citing the “actually invaded” clause, in a 2022 open letter to President Joe Biden. “Two years of inaction on your part now leave Texas with no choice,” he wrote. Andrew Mahaleris, a spokesperson for Abbott, said the governor “declared an invasion due to the Biden Administration’s repeated failures in upholding its constitutional duty to secure the border and defend states.”
Abbott ordered the banks of the Rio Grande river to be strung with razor wire and a shallow section to be obstructed by a 1,000-foot string of man-sized buoys and blades and signed a law, S.B. 4, giving state authorities the power to deport undocumented immigrants.
When the Justice Department sued, Abbott’s administration argued in legal briefs that its actions were justified in part because his state was under “invasion.” Twenty-three Republican attorneys general filed a brief in agreement.
“In both scope and effect, the wave of illegal migrants pouring across the border is like an invasion,” their brief read. “The Constitution’s text, the principle of sovereignty in the federal design, and the broader constitutional structure all support the conclusion that the States have a robust right to engage in self-defense. Contained within that right is presumptively acts to repel invasion.”
Texas’ invasion argument did not prevail. The 5th Circuit has blocked S.B. 4., and a lower court and a three-judge panel skewered Abbott’s constitutional argument in the buoy case. In 2024, the full 5th Circuit ruled under another law that Abbott was entitled to leave the floating barriers in place. It avoided ruling on Texas’ invasion claim altogether — but not without one judge dissenting. Trump appointee James Ho argued courts have no ability to second-guess executives about which threats rise to the level of an invasion and justify military action.
In his speech, Vought credited “the massive take-up rate” of the invasion legal theory to his and Cuccinelli’s behind-the-scenes efforts. Now the concept is being taken seriously by the president’s top advisers as they threaten to upend a core civil liberty.
“The definition of ‘invasion’ has broad implications for civil liberties — that’s pretty obvious,” Somin said. “They’re trying to use this as a tool to get around constitutional and other legal constraints on deportation and exclusion that would otherwise exist. But they also want to use it to undermine civil liberties” for U.S. citizens.
Molly Redden is covering legal affairs and how the second Trump administration is attempting to reshape the legal system. You can send her tips at [email protected] or via Signal at mollyredden.14.
William Moya says
I’ll cut through the fog, if Vikings were jumping the fence Trump would have the local High School band welcoming them, this is just fascist doing their thing as US governments have done in the past, over and over again.
Fernando Melendez says
I have to disagree with you on this one. It is an invasion, and one of the largest ever. I know personally of people that took advantage of Biden’s open boarders and risked everything to come to the US. No doubt about it, it was an invasion.
Shark says
The only thing that invaded my country was radical delusional republicans who were brainwashed by fox entertainment and a convicted felon !!!! Don the Con
JimboXYZ says
Only because Fentanyl deaths & OD’s that were saves didn’t spike under Biden-Harris. Don’t get me started on
FEMA wasting resources on illegals. Those are all fabrications by the right. The only one’s complaining aren’t the ones involved in immigration law & citizenship that were charging as much as Healthcare did for a Covid 2020 case. Talk about fraud & abuse, wasteful spending. In 2024, Biden closed the borders in a lame attempt to be re-elected. Amazing the more Biden & Newsom became like Trump & DeSantis. When Hurricane season hits a small town or larger city, at least FEMA will have a billion to spend on the real victims of the natural disaster.
Pogo says
@FWIW
Microsoft Copilot (MSC), please: speak of the lifeboat moral dilemma.
MSC replied:
The lifeboat moral dilemma is a thought experiment that challenges us to weigh our moral obligations against the stark realities of scarcity. Imagine a lifeboat with limited capacity adrift in a turbulent ocean. On board, there are already some passengers, but hundreds of swimmers—each desperately seeking rescue—are approaching. If too many are admitted, the lifeboat will sink, dooming everyone inside. This metaphor forces us to ask: Who should be saved when resources are finite, and at what cost does saving one group imperil another?
Garrett Hardin introduced this concept—often referred to as “lifeboat ethics”—in his influential 1974 articles. He contrasted the image of a bountiful “spaceship Earth,” where unlimited sharing of resources seems idealistic, with that of a lifeboat representing rich nations. In Hardin’s view, these nations can only take on so many people without risking their own survival. By refusing to take in too many “swimmers,” they are, in effect, protecting the limited resources available for those already safely aboard. This approach is intertwined with the ideas behind the “tragedy of the commons,” where unregulated access to a shared resource leads to its inevitable depletion.
Critics of lifeboat ethics argue that this metaphor oversimplifies the complex issues of global justice, empathy, and long-term sustainability. While Hardin’s metaphor underscores the harsh limits imposed by finite resources, it also raises uncomfortable questions about compassion, responsibility, and the possibility of innovative solutions that might allow for more inclusive resource-sharing without risking collective collapse. For instance, alternative approaches could involve investing in technologies or policies that expand available resources, rather than framing the debate solely in terms of exclusion.
This ethical dilemma has resonated across debates on immigration, environmental policy, and economic disparity. It challenges policymakers and individuals alike to consider how best to balance immediate humanitarian impulses with the necessity of preserving long-term stability. In essence, the lifeboat dilemma isn’t just about saving lives in the moment—it’s about making difficult choices that ensure the survival of many over the long haul, even if those choices might seem cold or harsh in trying circumstances.
Beyond its immediate implications, lifeboat ethics invites us to confront deeper questions: How do we define our responsibilities to others when resources like energy, water, or even social support are limited? What moral framework should guide decisions that pit compassion against practicality? And how might emerging technologies or cooperative international policies reshape this stark choice in the future?
If you’re intrigued by these complexities, you might also explore how other ethical models, such as utilitarianism or communitarianism, offer different perspectives on managing scarce resources. Additionally, examining the ongoing debates surrounding climate change, overpopulation, and environmental degradation can provide further insight into how these theoretical dilemmas manifest in real-world policy decisions.
Back to trump. Good luck with that.
YankeeExPat says
Instilled fear of brown people.
The dude says
MAGA’s entire “platform” is built on myth.
It’s contains more myths than Homer’s Iliad and Odyssey combined.
Jay Sebowitz says
You people are on crack, I swear. Ask Eric Adams if it’s an invasion.
The only thing fabricated is the Left’s reality. They continue to live in a delusion (a polite way of saying that they are liars), which is why their popularity has hit all time lows. Joe Biden was the puppet that allowed millions of people to flood into our nation unvetted. It’s no coincidence that the same thing is happening to every Western country, except a handful of Central European countries that still believe in national sovereignty. This has been planned for years by a small group of very rich, insane elitists who believe that their twisted vision is they only way forward. Unfortunately, every time this has happened in the past, it has le. ad to misery and death.
Samuel L. Bronkowitz says
When poor are too busy hating each other over racial and religious differences they’re unable to unite to fight the real enemy. That’s the “why.” The american people have been the subject of over a century’s worth of social programming designed to keep the poor where they’re at. There’s not a republican or democrat in office right now that thinks of their constituency as anything other than means to an end, that end being social status and power.
Atwp says
During his first term, there were pictures of caravans of immigrants coming to the country. Did it happen, no. People cast their ballots for him, this is what we got. A loud mouth lying poor excuse of a leader.
Sherry says
@jay. . . please post “credentialed facts” for your ridiculous claims. Otherwise, we will all understand that all you can do is post BS from Fox. Thanks!
Ray W, says
Hello Sherry.
Please consider this passage from Barry Unsworth’s “The Songs of the Kings” whenever you wonder how people can become so enamored with never-challenged self-belief.
“There in his privileged position, at the source of the words, Poimenos felt his soul expand with wonder. Often it was the lesser details that absorbed him, filling his mind long after the song was over, things that the Singer did not mention or passed over quickly. Those two gray-haired babies, lying side by side, who had been the guardian of the eye and tooth? What was adamant?
Why did Hermes give Perseus a sickle rather than a sword? What was the pouch for?
“Now, as the Singer absorbed the customary dramatic pause, striking slow notes on his lyre, Poimenos observed the angle of the head, the set of the shoulders. Slowly, almost stealthily, he adjusted his own body to an exact imitation. And it was in this posture, carefully maintained, that he listened to the rest of the wonderful story. The lair of the Gorgons was set in a strange forest of petrified forms, men and animals turned to stone by the glances of the terrible sisters. Perseus avoided this fate by keeping his eyes on the polished surface of his shield, which reflected the scene like a mirror. No one had told him to do this, it was his own idea. Wearing the cap of darkness, he soon tracked down the hideous sisterhood, with their hands of brass and wings of gold, their huge lolling tongues between swine’s tusks, their heads permanently writhing with snakes. He waited till they were asleep, then crept up on Medusa. The other two were immortal, so he did not bother with them. He had to move fast. Keeping her in view by means of the shield, he severed her head with a single stroke of the sickle, stuffed it into his pouch and took off. The other two rose up, but how could they pursue an enemy they couldn’t see? All they could do was return to the corpse and fly screaming around it.
“Poimenos sat on, still in the same posture, while the Singer fell silent and the wind raised its voice again, echoing the lamentations of the Gorgons. His mind was flooded by the story. So that was what the pouch was for. And the sickle, perfect for close quarters, it would almost encircle the neck, one sweep, bam. Everything had been thought of. It hadn’t been a contest at all, really. She would never have known what hit her. Careful planning, backed up by the most advanced equipment available, a tale of triumph. However, it was not the homeward speeding hero that engaged the boy’s mind, but the two grieving monsters, flapping around the headless corpse and screaming, screaming. The more deadly and ugly they were, the more he felt their sorrow.
“And so, that evening, without fully realizing it, Poimenos joined the addicts, passed for the first time into the true, ungoverned realm of story, where imagination is paramount, taking us to places not intended, often not foreseen, by the framers of the words and the makers of the music.”
Ray W, says
Hello Sherry.
Please also consider this blurb describing John Quiggin’s “Zombie Economics: How Dead Ideas Still Walk among Us”, published in 2010, just after the Great Recession began to ebb in economic effect.
“In the graveyard of economic ideology, dead ideas still stalk the land.
“The recent financial crisis laid bare many of the assumptions behind market liberalism — the theory that market-based solutions are always best, regardless of the problem. For decades, their advocates dominated mainstream economics, and their influence created a system where an unthinking faith in markets led many to view speculative investments as fundamentally safe. The crisis seemed to have killed off these ideas, but they still live on in the minds of many — members of the public, commenters, politicians, economists, and even those charged with cleaning up the mess. In Zombie Economics, John Quiggin explains how these dead ideas still walk among us — and why we must find a way to kill them once and for all if we are to avoid an even bigger financial crisis in the future.
“Zombie Economics takes the reader through the origins, consequences, and implosion of a system of ideas whose time has come and gone. These beliefs — that deregulation had conquered the financial cycle, that markets were always the best judge of value, that policies designed to benefit the rich made everyone better off — brought us to the brink of disaster once before, and their persistent hold on many threatens to do so again. Because these ideas will never die unless there is an alternative, Zombie Economics also looks ahead at what could replace market liberalism, arguing that a simple return to traditional Keynesian economics and the politics of the welfare state will not be enough — either to kill dead ideas, or prevent future crisis.
In a new chapter, Quiggin brings the book up to date with a discussion of the reemergence of pre-Keynesian ideas about austerity and balanced budgets as a response to recession.
Kennan says
Thank you Sherry and Samuel!!!
Holding it down and keeping it real.
Eric Adam’s Jay? Eric Adam’s??? Eric Adam’s is the biggest UNCLE TOM since JIM CROW!!
Let’s get real. I’ve said it before and I’ll say it again, politics in the United States is a joke. Both parties have their crosses to bear, but nobody lies more than the modern day RIGHT , Especially Trump and his goons.
Fear is the weapon they use to take attention away from the governing they Are supposed to be doing to deal with things like healthcare, education, the economy, and to try to make the planet more livable for future generations.
I’m all for showing up the border, but lying and calling it an invasion, treating immigrants like animals, and trying to convince your base that these people are all criminals.
Starting wars in other countries, whether proxy or otherwise, and taking marching orders from Israel to Support a Genocide We and the rest of the world know is happening in real time is sick. A diversion that not only shows your base what little you think of them, it shows the country how little you think of it.
I’m an American, but I’m not proud of how our leaders are representing America right now. Being an American according to these fascists, we have in power entails telling the rest of the world that we matter more than everyone else. You don’t have to like it, but it’s a fact. That’s not American. I would rather just be a better human being at this point.
Skibum says
Whenever there is a Dem president in the WH, fauxinfotainment airs supposed “live” video feeds of caravans of migrants walking north from south and central American countries. They proclaim incessantly that our country is being invaded by rapists, murderers and terrorists, and those scare tactics are designed to make Americans petrified to even look at or be near other people with dark skin or who do not speak English as their first language. The mush brained maga faithful eat it all up, even wild falsifications that migrants are eating people’s pets. all without one scintilla of evidence! Even local city leaders and law enforcement leaders have to go on national media to criticize and refute these lies, but the damage is already done. Both times the orange-faced buffoon has been in the WH, all of a sudden these scandalous, far fetched lies disappear from fauxinfotainment as fast as they were previously broadcast, and not one faux talking head even mentions made up fairytales of migrants eating people’s pets any more, as if what they claimed as fact suddenly ceased to exist simply because a moronic, impeached, convicted felon sexual abuser was elevated to power by idiot sheeple who have lost all critical thinking ability. This, unfortunately, is our American reality in today’s world.
Sherry says
Thank you Ray W., Kennan and Skibum! As my dearly departed mother would say “trying to talk sense into the non-thinking is a lesson in futility”.
While she may have been right, I certainly appreciate the effort of many who point out on Flaglerlive regarding how many of the Maga faithful simply live in a “Non-factual”, Fox created, “alternative universe” where trump is their lord and master no matter what.