President Trump’s Invasion Executive Order
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. J
Article from Reason.com
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