Donald Trump has wasted no time making his mark in his return to the White House.
In less than a week, the president has signed dozens of new executive orders and repealed nearly 80 orders and memorandums from the Biden era.
If the federal government declares an invasion has occurred, then states have the right and arguably the duty to respond accordingly.
One of the most notable orders, titled “Guaranteeing the States Protection Against Invasion,” introduced immediate changes to immigration law.
The order suspends temporarily a contentious policy that allows immigrants to enter the United States by claiming asylum.
Additionally, it directs federal agents to block entry for immigrants who fail to provide sufficient medical information or reliable criminal and background records.
Perhaps the most important change, however, is one that has received little attention from the media — the classification of the ongoing border crisis as an “invasion.”
Many of Trump’s critics have classified the “invasion” rhetoric as xenophobic or racist, but in doing so, they have completely missed an important policy justification for using the term. By calling what’s occurring at the southern border an “invasion,” Trump has effectively given states the right to take drastic action against illegal immigration.
The U.S. Supreme Court has repeatedly ruled that the Constitution prioritizes federal authority over state authority in immigration matters.
The court has determined that Article II grants the president the power to regulate many aspects of foreign affairs, including issues connected to immigration.
Article I empowers Congress to “establish a uniform Rule of Naturalization,” governing the process of becoming a citizen.
The Constitution provides little mention of states’ rights regarding immigration, a lack often interpreted as justification for federal control of the issue.
However, in Article I, Section 10, the Constitution declares, “No State shall, without the Consent of Congress, ... engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”
In other words, although states cannot determine citizenship or set a foreign affairs agenda that’s out of step with the president, they can defend themselves from an invasion.
During the Biden administration, officials reported more than 8 million illegal border “encounters,” a figure that captures the number of people caught by officials while trying to illegally enter the United States. Importantly, data on “encounters” do not reflect the potentially millions of other immigrants who have come to America illegally over the same period but weren’t caught.
Some states have argued that this wave of illegal immigration constitutes an “invasion” and that because the Constitution allows states to combat an invasion, state officials should have the right to take action.
For example, in 2023, Texas lawmakers claimed the state had been invaded and then passed Senate Bill 4, which, among other things, gave Texas police the power to arrest illegal immigrants.
The law has been tied up in court since it was passed, largely because of courts’ reluctance to give states power over immigration and because claims of an “invasion” depend on the Constitution’s meaning of the term, which has been in dispute for years among legal scholars.
Now that the Trump administration has officially declared that the recent immigration crisis is an “invasion,” there should be no doubt that states have the legal authority to defend themselves. This would be a significant enhancement of states’ rights, assuming the designation and subsequent actions on the part of states survive legal challenges.
Regardless of your position on immigration, we should all be able to agree that states ought to have the power to defend themselves in the event of an invasion. And if the federal government declares an invasion has occurred, then states have the right and arguably the duty to respond accordingly.
If you disagree, then who, exactly, should have the right to decide when an “invasion” has occurred?
Although opponents of the new order won’t want to hear it, elections do, indeed, have consequences.
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