Federal Judge Rules Against Trump on Use of “Invasion” Powers to Expedite Deportations

In Washington, D.C., District Court Judge Randolph Moss has issued a notable decision against the Trump Administration in Refugee and Immigrant Center for Legal and Educational Services v. Noem. Judge Moss rejected the use of Trump’s January 20 “invasion” executive proclamation to block undocumented immigrants from pursuing asylum applications and other legal pathways. The court essentially rules that the Guarantee Clause of Article IV, Section 4 of the Constitution is something of a paper tiger, finding that states are protected from “invasion,” but affording the President no additional powers to carry out that guarantee.

We have previously discussed the Guarantee Clause and efforts of states to claim an invasion to allow them to cross the border during the Biden Administration when millions were allowed to close into the country.

The clause states that “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion.” Notably, Judge Moss does not resolve the question of what constitutes an invasion because he finds that it does not matter: the clause is more rhetorical and actual in terms of authority. It does not afford President Trump any additional power to negate or supplant federal laws:

For the reasons that follow, the Court concludes that neither the INA [statute] nor the Constitution grants the President or the Agency Defendants authority to replace the comprehensive rules and procedures set forth in the INA and the governing regulations with an extra-statutory, extra-regulatory regime for repatriating or removing individuals from the United States, without an opportunity to apply for asylum or withholding of removal and without complying with the regulations governing CAT protection…[T]he INA, by its terms, provides the sole and exclusive means for removing people already present in the country, and, as the Department of Justice correctly concluded less than nine months ago, neither § 1182(f) nor § 1185(a) provides the President with the unilateral authority to limit the rights of aliens present in the United States to apply for asylum.

…

Defendants’ reliance on the Constitution’s guarantee that the “United States . . . shall protect each [state] against Invasion,” U.S. Const., art. IV, § 4 (the “Invasion Clause”), fails for the same reasons. Defendants themselves place little or no independent reliance on the Invasion Clause and, instead, merely suggest that the President plays some role in protecting the States “against Invasion….” even assuming that is correct, Defendants do not dispute that Congress plays the primary role in crafting the governing rules and that, under the Youngstown framework, see Youngstown, 343 U.S. at 637–38 (Jackson, J., concurring), the President may not act in derogation of the laws that Congress has enacted. Although relevant precedent is sparse, the Supreme Court has opined that the responsibility for “carry[ing] into effect” the Guarantee Clause “is primarily a legislative power,” Texas v. White, 74 U.S. 700, 701 (1868), overruled on other grounds by Morgan v. United States, 113 U.S. 476 (1885), and that it “rest[s] with Congress . . . to determine . . . the means proper to be adopted to fulfill th[e] guarantee” against “domestic violence,” Luther v. Borden, 48 U.S. 1, 43 (1849). There is no reason to believe that the Invasion Clause, which appears in the very same sentence of Article IV as these provisions, allocates responsibility any differently. That conclusion finds further support in Article I of the Constitution, moreover, which grants Congress the power to “provide for calling forth the Militia to . . . repel Invasions,” U.S. Const., art. I, § 8, cl. 15, leaving little doubt that responsibility under the Invasion Clause is, at the very least, shared between the political branches. Finally, it is far from clear that the Invasion Clause confers any power to act that is not found elsewhere in Articles I and II of the Constitution. Unlike Article IV, Section 4, which speaks in terms of the responsibility of “[t]he United States” to protect the States, Articles I and II speak in terms of the “Power[s]” vested in the Congress and the President to perform their constitutional responsibilities…. If the President lacks authority under the Vesting Clause of Article II to supplant the INA with an alternative set of immigration laws, that power cannot be found in Article IV, Section 4.

This is a matter of first impression for the courts and there are good-faith arguments on both sides. The court is saying that Article IV, Section 4 does not vest any additional powers that the President does not have under Article II. The question, however, is whether that effectively makes the Guarantee Clause superfluous and meaningless in terms of actual authority to repel an invasion.

There is also the separate issue of Judge Moss’s own authority in issuing relief. The court acknowledges that it cannot, under prior precedent, issue class-wide injunctive relief. However, it finds the equivalent in reframing the relief:

“the Court is persuaded that it lacks authority to issue a class-wide injunction requiring the Agency Defendants to comply with § 1231(b)(3), and the Court, accordingly, will not do so. But that does not mean that the Court must deny the principal injunctive relief that Plaintiffs seek—that is, an order precluding the Agency Defendants from implementing the Proclamation. Among other things, as noted above, the Proclamation expressly refers to asylum, but it says nothing about withholding of removal, and although the Proclamation purports to suspend “access to provisions of the INA that would permit continued presence in the United States,” Proclamation, §§ 2–3, withholding of removal does not permit aliens to remain in the United States—it merely specifies to where an alien may be removed.”

This will now proceed on appeal and ultimately could reach the Supreme Court. There is another invasion case pending in the Fifth Circuit that concerns the President’s authority under the Alien Enemies Act (AEA).