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THE “INVASION” INVENTION: THE FAR RIGHT’S LONG LEGAL BATTLE TO
MAKE IMMIGRANTS THE ENEMY  
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Molly Redden
May 23, 2025
ProPublica
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_ The Trump administration is using the claim that immigrants have
“invaded” the country to justify possibly suspending habeas
corpus, part of the constitutional right to due process. A faction of
the far right has been building this case for years. _

, Alex Bandoni/ProPublica. Source image: United States Constitution.

 

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
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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
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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
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had become such a staple of Republican campaign ads
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of the public agreed
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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
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invoking the Alien Enemies Act to deport roughly 
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Venezuelan
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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
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prisoners are not even members of Tren de Aragua.

The contention is also the throughline of Trump’s day one executive
order
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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
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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
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Indeed, Trump’s own intelligence agencies found that Maduro is not
directing the gang
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Supreme Court has not ruled on the question but froze any more
deportations
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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
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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
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during the War of 1812 and World Wars I and II.

Habeas corpus has likewise been suspended only a handful of times
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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
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In each of these cases, the executive branch acted after receiving
permission
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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
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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
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“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
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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
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the U.S. had violated the section of the Constitution stating the
federal government “shall protect each against Invasion.”

Federal courts slapped down his lawsuit — and a spate
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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
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pioneered efforts like ending birthright citizenship. The organization
contended that immigrants were “foreign invaders” as described in
the Constitution.

Cuccinelli evangelized for the theory
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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
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year. Vought and Cuccinelli did not respond to requests for comment.

In 2021 and 2022, Cuccinelli, with Vought’s help, mounted press
conferences
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urged
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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
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“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
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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
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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
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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._

* Immigration Policy
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* U.S. invasion
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* far right politics
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