Addendum II: Constitutional Showdown
Trump’s Invasion Order vs. the Rule of Law (August 1 Update)
This is the second update to the ongoing legal battle over Trump’s executive order, “Guaranteeing the States Protection Against Invasion,” which bars asylum to migrants who enter the U.S. illegally. As I previously reported in my July 15 update, the case has been awaiting a ruling from the D.C. Circuit Court of Appeals since July 3. On Friday, the court issued an interim ruling that partially reinstates the lower court’s block on the policy—but only for a narrowly defined group of migrants already in the U.S.
Background Context: On January 20, President Trump issued a proclamation (Proclamation 10888, “Guaranteeing the States Protection Against Invasion”) that restricted access to asylum for migrants at the U.S.-Mexico border, unless they entered through official ports of entry. Advocacy groups sued, claiming this violated U.S. immigration law. Judge Moss of the U.S. District Court for the District of Columbia agreed and blocked the order. The government appealed Moss’s ruling.
The D.C. Circuit Court of Appeals ruled that the government may continue applying Trump’s restrictions to migrants who enter the U.S. outside official ports of entry—but only if they fall outside a narrowly defined group. That group includes certain migrants who entered unlawfully but are still legally eligible under longstanding U.S. protection laws. The “narrowly defined group” includes only individuals who meet all three of the following conditions: They are physically present in the U.S. while Trump’s Proclamation 10888 (and its related enforcement policies) is still in effect. They are not legally barred from seeking protection. They are eligible under U.S. law for asylum, withholding of removal under the INA, or protection under the Convention Against Torture (definitions of these are at the bottom of the page).
However, the ruling creates a grey area for individuals who entered the country illegally, have been in the U.S. for a while, and fall within the narrow class of definition the court has established. Depending on how the courts interpret and apply the eligibility requirements, individuals may be able to challenge the Trump policy as part of the protected class, but outcomes will vary case by case.
In plain terms, Trump’s asylum restrictions still apply at the border to most people who cross illegally. However, if someone is already inside the United States and meets specific eligibility requirements under U.S. asylum law, the government cannot deny their claim outright simply because of the proclamation—at least for now. The court limited relief to this narrowly defined group and rejected broader, nationwide protections. Meanwhile, the larger legal battle over whether Trump’s proclamation is lawful and/or constitutional continues to unfold.
The court’s “partly yes, partly no” ruling limits Trump’s asylum denial but sidesteps a direct confrontation with Trump’s executive branch—at least for now. It is, however, a confrontation that is inevitable. This fall, after oral arguments, the court will decide whether a president can unilaterally rewrite asylum law by proclamation. We all know Trump wants the power. What will he do if he is denied it? Immigration is the veneer, but the separation of powers is what is truly at stake. Whichever way the appeals court rules, the case is headed to the Supreme Court, where the constitutional balance of power may face its most consequential test in a generation.
The court ordered the case to proceed quickly, setting a fast-track schedule for both sides to submit legal briefs and prepare for oral arguments.
Fast-Track Schedule for Final Arguments:
Trump administration’s brief due: August 22, 2025
ACLU and others (Appellees) respond: September 12, 2025
Trump team replies: September 26, 2025
Oral arguments will follow soon after.
The court told both sides:
Don’t file separate motions to dismiss the case — just put all your arguments in your briefs.
Raise all your issues early — anything raised for the first time in the reply brief may be ignored.
Definitions:
Eligible for asylum means they must be present in the U.S., can prove a well-founded fear of persecution in their home country based on at least one of these five reasons: race, religion, nationality, political opinion, membership in a particular social group (LGBTQ, domestic violence survivor) and show that the government in their home country is either causing the harm or unwilling or unable to protect them from it (e.g., corrupt police, powerless courts)
Withholding removal under the INA is a limited form of protection that prevents the U.S. government from deporting someone to a country where their life or freedom would be threatened because of their race, religion, nationality, political opinion, or membership in a particular social group. The burden of proof is higher than asylum—the person must show it’s “more likely than not” that they will be harmed if deported. If granted, the person can’t be deported to that specific country.
Protection under the Convention Against Torture (CAT) protects people from being deported to a country where they would face a real risk of torture, regardless of the reason. The person must prove it is more likely than not that they will be tortured if returned to their home country. Unlike asylum, this protection does not depend on race, religion, or political beliefs — it’s focused purely on the risk of torture. It applies even to people barred from asylum or withholding, like those with serious criminal convictions. Like withholding of removal, it does not lead to a green card, citizenship, or benefits for family members.
You can read the ruling here: Document #2128457