Constitutional Showdown

Trump’s Invasion Order vs. the Rule of Law

This past Wednesday, while the media and many others were focused on the fanfare surrounding Trump’s “Big Beautiful Bill,” a federal court decision quietly dropped—one that may trigger the constitutional crisis everyone is expecting.

On January 20, 2025, a few hours after being sworn into office for the second time, President Trump signed an executive order titled “Guaranteeing the States Protection Against Invasion.” The order characterized the large numbers of unauthorized southern border crossings as a constitutional “invasion” under Article IV, Section 4 of the Constitution, commonly known as the “Guarantee Clause.” The clause guarantees the United States will protect every State in the Union against invasion.

Trump’s order suspended the entry of migrants crossing the southern border outside official ports of entry. It barred them from applying for asylum and directed federal agencies to “repel and remove” such individuals. Trump cited emergency authority under the Immigration and Nationality Act (INA) § 212(f) and Article II of the Constitution, claiming the power to suspend entry based on national interest and foreign policy concerns. INA § 212(f) refers to a section of the Immigration and Nationality Act that gives the president broad authority to suspend or restrict the entry of noncitizens into the United States if their entry is deemed detrimental to national interests.

However, illegal immigrants have a statutory right to asylum. Specifically, 8 U.S.C. § 1158(a)(1) states: “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival… irrespective of such alien’s status), may apply for asylum…” In other words, Congress has explicitly granted noncitizens the right to seek asylum, even if they cross the border illegally. Trump’s order attempts to nullify that right, putting it in direct conflict with federal law.

In early February, the American Civil Liberties Union filed a class-action lawsuit on behalf of thirteen anonymous individual asylum seekers, alongside three immigration nonprofits: the Refugee and Immigrant Center for Education and Legal Services, Las Americas Immigrant Advocacy Center, and the Florence Project. The lawsuit argues that Congress created clear laws allowing noncitizens fleeing persecution or torture to seek asylum in the U.S., and the Executive Branch cannot override those rights by executive order.

U.S. District Court Judge Randolph Moss ruled that the President had exceeded his constitutional and statutory authority. Judge Moss emphasized that neither the INA nor the Constitution allows the executive branch to rewrite immigration law or override congressional statutes.

Because the Supreme Court curtailed judges’ authority to issue nationwide injunctions, Judge Moss issued his ruling using two other legal tools that still allow broad relief. First, he relied on the Administrative Procedure Act, or APA—a federal law that lets courts “set aside” agency actions that are unlawful, arbitrary, or exceed legal authority. Second, he granted class action certification, allowing the case—brought by a few plaintiffs—to represent all migrants similarly affected by the order. As a result, Moss’s ruling applies nationwide without violating the Supreme Court’s new restrictions on broad injunctions.

Moss stayed his ruling for 14 days to allow the administration to appeal, and the White House has indicated they will do so. The United States Court of Appeals for the D.C. Circuit will hear the appeal, where a panel will decide whether to uphold or reverse the decision.

Trump claims the mass influx of migrants at the southern border constitutes an “invasion,” but the legal issue isn’t about that. The key legal issue is whether the president has the constitutional or statutory authority to override explicit asylum protections enacted by Congress. As stated earlier, under 8 U.S.C. § 1158(a)(1), any noncitizen physically present in the United States—regardless of how they entered—has the legal right to apply for asylum. Judge Moss ruled that the President cannot suspend or nullify this right by invoking emergency powers or by reinterpreting unauthorized migration as an “invasion” under Article IV, Section 4 of the Constitution. Historically, that clause has been understood to address armed hostility from another political entity, such as another state or foreign country that is intending to overthrow the state’s government, not humanitarian migration flows.

Does the executive branch have the right to suspend statutory protections enacted by Congress simply by declaring an emergency? While Trump’s legal team relies on INA § 212(f)—a statute that gives the president broad authority to suspend the entry of certain noncitizens—courts have consistently ruled that this authority cannot be used to contradict other binding provisions of immigration law. The Courts are not being asked to assess the severity of the border crisis, but to decide whether the president can use unilateral declarations to bypass Congress and rewrite the law. At its core, this case is about the separation of powers: That, not the question of what constitutes an “invasion,” is likely to be the deciding factor in the appeal.

The D.C. Circuit could issue a further stay while they hear Trump’s appeal, which means the administration can continue to bar illegal immigrants from applying for asylum and deporting them. However, what if the D.C. Circuit should decline to stay Moss’s ruling while they hear the case? Will the administration comply with the order and resume asylum processing—letting immigrants entering the country illegally plead for asylum and be processed and allowed to remain in the U.S. pending their asylum hearing—or will it engage in legalistic noncompliance—dragging its feet through administrative excuses, procedural revisions, or policy rebranding to delay or obscure compliance? And if it does, what will the Court do, if anything, to enforce its ruling?

Regardless of how the D.C. Circuit rules, this case will wind up before the Supreme Court. The Supreme Court has never ruled directly on whether a president can suspend asylum rights

en masse using emergency or national security powers. While the Court upheld Trump’s travel ban in Trump v. Hawaii (widely perceived as a Muslim Ban), that case did not address asylum or § 1158(a)(1). Trump v. Hawaii upheld a travel ban rooted in national security, but it did not involve statutory rights granted to individuals already within U.S. territory, making this a fundamentally different question of executive overreach.

Trump’s legal team argues that INA § 212(f) gives the president sweeping authority to suspend the entry of noncitizens when their presence is deemed detrimental to U.S. interests. They claim this provision empowers Trump to bar migrants from entering and applying for asylum during what he has declared an “invasion.” However, Judge Moss found that this assertion conflicts with a more specific statute: INA § 1158(a)(1), which explicitly states that any noncitizen who is physically present in the U.S.—regardless of how they entered—has the right to apply for asylum. Historically, specific statutes typically prevail over more general ones, especially when they confer individual rights. Moss concluded that the executive branch cannot use a broad emergency power to override a clear congressional mandate. In short, Trump cannot erase asylum rights by executive proclamation.

If the Court rules in favor of Trump, it will signal a tectonic shift in constitutional law, empowering presidents to suspend statutory rights under broad emergency claims. Future presidents could apply similar logic to labor law, civil rights, or environmental protections. It would also mean asylum law no longer protects those entering outside official checkpoints, a significant departure from decades of precedent and likely a violation of international human rights obligations.

If the Court rules against Trump, it will reinforce Congress’s role in setting immigration law. However, it would also mean that any noncitizen who enters the U.S.—even illegally—must be allowed to apply for asylum and cannot be categorically denied entry. It would establish broad access rights and raise serious questions about enforcement, resources, and national security limits.

What will Trump and MAGA do if the Supreme Court rules against Trump, and the order becomes final? Trump and MAGA will face a stark choice: comply or defy the judiciary. I wrote in my last article, “Trump, MAGA, and The Art of War,” that Trump and MAGA are going to end the rule of law by defying the courts, and they will do it “at a time and in a manner of their choosing.” There is no doubt in my mind that when their grip on the levers of American power is threatened, they will defy the courts to remain in power.

However, if there’s any other case where the administration might refuse to implement a ruling, this is it. If so, they will frame it as an illegitimate interference in the president’s Article II responsibilities and refuse to process asylum claims from those they deem part of an “invasion.” This case will likely be the one that triggers the constitutional crisis many have warned about. If the Supreme Court rules against him and he refuses to comply, the judiciary’s authority will be tested in a way not seen since the Nixon or Jackson presidencies. A president openly disregarding a final court order would mark the breakdown of one of the most fundamental principles of American democracy: that no one is above the law—not even the president.

If a president can nullify laws by proclamation, what’s left of the separation of powers? The real question now isn’t just what the courts will do, but what the President will do if he doesn’t get his way. Just as important is how “we the people” will respond. The consequences—legal, political, and constitutional—won’t just be historic. They’ll determine whether the rule of law applies to everyone, including the president.