Eugene Volokh's Blog, page 181

[Josh Blackman] Can The President Unilaterally Declare An Invasion?

In my post on the invasion executive order, I wrote "I think it pretty clear that the President can declare an invasion." A reader opined that because Congress has the power to declare war, the President cannot unilaterally declare an invasion. Relatedly, a reporter asked me if a President has ever before declared an invasion.

I think the general consensus view is that for the President to use military power abroad as part of a war, Congress must declare war. (There is some debate about whether a declaration is needed for something less than a war, such as "hostilities," but I'll table that issue for now.) I also think the general consensus view is that the President does not need a declaration of war to repel an invasion. That is, if the United States is under attack, the President can act to secure the homeland before seeking authorization from Congress. And if the President can repel an invasion, then he necessarily has the power to declare when such an invasion is occurring.

Thankfully, the United States has suffered very few invasions. Our conflicts generally have been fought abroad. A few of the more prominent invasions would be the War of 1812 and Pearl Harbor. In both conflicts, Congress issued declarations of war against Great Britain and Japan, respectively. On short notice, I could not find anything from President Madison that is relevant for the War of 1812. But I find relevant President Franklin D. Roosevelt's "Day of Infamy" speech, delivered on December 8, 1841. This speech asked that Congress declare war between the United States and Japan. Yet, FDR had already determined that Japan invaded the United States. He spoke to the invasion directly:

"No matter how long it may take us to overcome this premeditated invasion, the American people in their righteous might will win through to absolute victory."

I do not know if Roosevelt was able to dispatch any orders to Pearl Harbor during the attacks. But let's assume that communications were different. Does anyone doubt that Roosevelt could have ordered troops at Pearl Harbor to fight back against the invading Japanese Kamikazes? I think the answer is yes, because the President has the Article II authority to repel an invasion. What is the alternative? Would FDR have to convene Congress and wait for a declaration to stop an impending attack?

If that analysis is right, where would that declaration of invasion leave Hawaii? (Assume for a moment that Hawaii was a state in 1941). Article I, Section 10, Clause 3 provides that a state can "engage in War" when "actually invaded." If President Roosevelt declared that Hawaii was being invaded, the Executive of Hawaii could have "engaged in War" against the incoming attack. I do not know that Hawaii even had the apparatus of war, but that is a separate question.

In 1942, several Nazi saboteurs landed on the beach in Long Island. I would think that these were invading forces. By this point, war had already been declared against Germany, so a declaration of invasion would not have been necessary. For whatever it is worth, the Supreme Court in Ex Parte Quirin (1942) referred to such forces a "enemy invaders."

Also relevant is an incident from Texas in 1874. Judge Ho described it in his United States v. Abbott concurrence:

These issues came to a head in 1874. The United States Attorney General informed Texas Governor Richard Coke that his military orders violated a federal statute prohibiting unauthorized hostile actions in other countries. Id. at 164 (citing Act of April 20, 1818, § 6, 3 Stat. 449). Governor Coke responded by invoking his constitutional authority under Article I, section 10. See id. at 164–67 (text of letter available in the Appendix). In doing so, he acknowledged that federal authorities had the "power" to obstruct his actions if they wanted to. Id. at 167. After all, the United States possesses superior military forces, as well as the authority to call state militias into federal service (U.S. Const. art. I, § 8, cl. 15–16; id. art. II, § 2, cl. 1). But he explained his "clear conviction[]" that, notwithstanding federal law, States have the same "right" to self-defense that would "ordinarily reside in the United States." Id. at 166–67. In response, the Attorney General acquiesced to the Governor's claim of authority. Id. at xvi.

Here, the executive branch acquiesced to the declaration of an invasion by Texas.

There are three other relevant references to invasion in the Constitution.

First, Congress has the power "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." But the President, as Commander in Chief of the Militia, has the power to decide when to call forth the Militia to accomplish those ends. I would think that the President can decide when there is an insurrection or invasion at hand, in order to call forth the Militia. This argument is supported by the Militia Act of 1795.

It provides, in part:

That whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such number of the militia of the state, or states, most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to issue his orders for that purpose, to such officer or officers of the militia, as he shall think proper. Act of February 28th, 1795 (1 Stat. at Large, 424).

In Martin v. Mott (1827), Justice Story described this provision:

If we look at the language of the act of 1795, every conclusion drawn from the nature of the power itself, is strongly fortified. The words are, 'whenever the United States shall be invaded, or be in imminent danger of invasion, &c. it shall be lawful for the President, &c. to call forth such number of the militia, &c. as he may judge necessary to repel such invasion.' The power itself is confided to the Executive of the Union, to him who is, by the constitution, 'the commander in chief of the militia, when called into the actual service of the United States,' whose duty it is to 'take care that the laws be faithfully executed,' and whose responsibility for an honest discharge of his official obligations is secured by the highest sanctions. He is necessarily constituted the judge of the existence of the exigency in the first instance, and is bound to act according to his belief of the facts.

It would seem here that Congress has authorized the President to determine when an invasion occurs. And when he make such a declaration, Congress has authorized the President to call forth the militia. But the President does not need to seek a declaration from Congress before that power can be exercised. The President decides what is an invasion, and that decision is entitled to vast deference.

Second, Congress can suspend the Privilege of the Wit of Habeas Corpus "when in Cases of Rebellion or Invasion the public Safety may require it." Under Ex Parte Merryman, Congress has the sole power to suspend the writ of habeas corpus. At least with regard to suspending habeas corpus, it would seem Congress has the power of making such a determination. It would not be prudent for Congress to wait for the President to declare an invasion, especially since the President may be the person who is imprisoning people without any process.

Third, "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion." This text does not specify the branch of the federal government that makes such a "guarantee." The "United States" usually refers to Congress assembled, rather than the executive branch. But in Luther v. Borden (1849), Chief Justice Taney wrote that whether a state has changed its government " is a question to be settled by the political power." And Taney says this power belongs to the President:

By this act, the power of deciding whether the exigency had arisen upon which the government of the United States is bound to interfere, is given to the President. He is to act upon the application of the legislature or of the executive, and consequently he must determine what body of men constitute the legislature, and who is the governor, before he can act. The fact that both parties claim the right to the government cannot alter the case, for both cannot be entitled to it. If there is an armed conflict, like the one of which we are speaking, it is a case of domestic violence, and one of the parties must be in insurrection against the lawful government. And the President must, of necessity, decide which is the government, and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by the act of Congress. . . .  It is said that this power in the President is dangerous to liberty, and may be abused. All power may be abused if placed in unworthy hands. But it would be difficult, we think, to point out any other hands in which this power would be more safe, and at the same time equally effectual.

Luther concerned an insurrection, rather than an invasion. But Taney said there was no difference between the two, at least with regard to the Militia Act:

A question very similar to this arose in the case of Martin v. Mott, 12 Wheat. 29–31. The first clause of the first section of the act of February 28, 1795, of which we have been speaking, authorizes the President to call out the militia to repel invasion. It is the second clause in the same section which authorizes the call to suppress an insurrection against a State government. The power given to the President in each case is the same,—with this difference only, that it cannot be exercised by him in the latter case, except upon the application of the legislature or executive of the State.

Where does this history leave us.

The Constitution expressly grants Congress the power to declare war, but does not indicate which branch of government can declare an invasion. The general understanding is that Article II grants the President the power to repel an invasion, and presumably, the President can determine when such an invasion is occurring. The Militia Act of 1795 supports the presumption. The Constitution allows Congress, and not the executive, to suspend habeas corpus during an invasion, which would require Congress to determine when there is an invasion.

Is the power to declare an invasion, like the power to declare war, reserved solely to Congress? Or is the Constitution silent on this issue, and might permit both Congress and the President to make this determination? My initial inclination was the latter, and having thought this issue through, I think this is the better answer. But there is so little law here, and so few invasions, there is not much to go on. My thoughts here are tentative, and I welcome comments and corrections.

I heard a report that members of Congress may vote to declare an invasion, so this issue may become moot.

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[Eugene Volokh] Midweek Midday Open Thread

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[Eugene Volokh] Free Speech and Private Power: Restraints on Government Officials Moderating Online Content Following Lindke

[I am serializing my short Harvard Law Review Forum essay titled "Free Speech and Private Power", responding to the Harvard Law Review's publication of Evelyn Douek & Genevieve Lakier's excellent new article, Lochner.com? I actually agree with much of what Douek & Lakier say, but offer a somewhat different perspective on the matter, mostly asking what the Court's recent cases mean going forward, rather than trying to critique them.]

[This post is about Lindke v. Freed, which (to oversimplify) held that a public official's blocking commenters from the official's social media page based on their viewpoints constitutes "state action" and thus potentially violates the First Amendment "only if the official (1) possessed actual authority to speak on the State's behalf, and (2) purported to exercise that authority when he spoke on social media. The appearance and function of the social-media activity are relevant at the second step, but they cannot make up for a lack of state authority at the first."]

Lindke, like Murthy [v. Missouri], asked the Court to draw a line between public power, which is constrained by the First Amendment, and private power, which is not. But in Lindke, a government official was indubitably acting: The question was whether the official was acting as an official or as a private citizen.

Here I think I disagree in some measure with Douek and Lakier's analysis, though more as a matter of emphasis: I appreciate their critiques of the Lindke opinion, but think that on balance the opinion makes sense, because the "space of privacy for government officials when they use[] social media to publicize their work and promote their political agenda" is indeed worth preserving.

Before being anything else, after all, officials are people. They often act the way other people act, and are entitled to considerable latitude in doing so. Thus, for instance, even when the Establishment Clause was seen as generally restricting governmental endorsement of religion, individual officials remained free to go to church and avow their own faith, in their individual capacities—and even to include religious references in their public speeches. Indeed, attempts to protect the state from undue capture by the church were themselves struck down on First Amendment grounds when they interfered with officials' ability to be both public servants and clergy members. Likewise, equal protection principles limit government officials' power to discriminate based on sex when choosing government employees, but presumably not when choosing, say, roommates, where such discrimination may itself be constitutionally protected.

Government officials running for reelection often give speeches that are understood as their own private expression. A candidate for initial election is free to organize an event that's only open to those who support the campaign, or allow public attendance generally but exclude attendees who display signs or wear clothing that supports the other side. A candidate for reelection is free to do the same. An officeholder's excluding people based on their political affiliation or political viewpoint may be forbidden when the officeholder is acting as officeholder, but permitted when acting as candidate.

And this remains true, I think, even when the campaign speech describes the officeholder's accomplishments, or announces new plans. Officeholders acting as officeholders may announce their new plans as part of their jobs, or otherwise speak in a way that "facilitat[es] their performance of their [government] responsibilities" with "the purpose and effect of influencing the behavior of others." But I don't think this keeps them from doing so at campaign rallies, or requires them to admit adversaries to their rallies.

Nor is this a special feature of reelection campaigns (especially since many politicians are always acting with an eye toward the next election). Rather, it just reflects that government officials wear two hats, a governmental and an individual. When I was a UCLA professor, I was constrained by the First Amendment in my official decisions—I couldn't just give lower grades based on a student's party affiliation, I think—but it doesn't follow that I was thus constrained when moderating an online discussion list that I had founded.

And this is especially important given Moody's recognition of the First Amendment value of content curation. Government officials, like private citizens, might want to curate the comments on their individual accounts, including based on viewpoint. Sometimes this might aim at promoting their political agenda, such as by blocking harsh criticism and perhaps thus helping them get reelected. Sometimes it might aim at promoting a more comfortable conversation for the great bulk of their constituents, for instance by blocking posts that they view as bigoted or just too nasty or personal. (Recall that governmental restrictions on "disparaging," "scandalous," or ""immoral" speech are treated as viewpoint-based.) Sometimes it might aim at both.

To be sure, government bodies, as noted above, might not be allowed to moderate comments based on such viewpoint-based criteria, since the comment threads are essentially viewed as "limited public fora," and the government bodies are state actors. Likewise, government bodies that open up in-person public comment periods must be viewpoint-neutral in administering them. But some valuable curated speech products are lost as a result.

That loss might be inevitable given First Amendment doctrine as applied to government bodies. But it need not occur as to individual government officials' social media pages. And ultimately I doubt that providing this sort of protection to public officials' curation of the comments on their social media feeds—using the same tools that ordinary citizens use for their own feeds—will on balance "significantly undermine the public's right to speak and to learn." However much public debate may be burdened by speech restrictions imposed by behemoth platforms, the burden seems much smaller when created by individual officeholders controlling the comments posted to the accounts that they run. And even if elected officeholders' speech interests are somewhat less than those of social media platforms (which is not clear), those interests should suffice to justify protecting the officeholders' editorial discretion as to the comments, even if that restricts in some measure the commenters' ability to speak to fellow readers of that one social media page.

To be sure, this might just reflect that there was less at stake in Lindke than in the other cases. Individual officeholders' power over comments on their own accounts is much less significant than social media platforms' or government officials' power over platform speech generally. Not much is either lost or gained to the marketplace of ideas when officials use that power (whether one views such use as valuable curation, harmful restraint on citizen feedback, or both). Still, I agree with Douek and Lakier that the public/private power question at the heart of Lindke is conceptually interesting, and Lindke may become an important precedent for future cases dealing with when officials are acting as government actors.

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[Eugene Volokh] Calling Someone "White Supremacist" in Online Debate Is Opinion …

This is the standard view under American defamation law; it had in the past been applied to allegations of Communism, Socialism, etc., but more recently has often been applied to allegations of racism, sexism, white supremacy, etc. Here's an excerpt from Murphy v. Rosen, released yesterday by the Connecticut Supreme Court, in an opinion by Justice Andrew McDonald:

The use of derogatory remarks on social media and elsewhere has become commonplace in political discourse, with words and phrases taking on different meanings depending on the context in which the expression is made, the intentions of the speaker, and the viewpoint of the audience…. The primary issue on appeal is whether the characterization of the plaintiff as a "white supremacist" is, standing alone, an actionable fact constituting defamation per se.

We conclude that, although calling someone a "white supremacist" or a "racist" is a serious accusation, the meanings of these terms are inherently subjective. As a result, we join numerous other jurisdictions that have concluded that these terms are not objectively verifiable and do not, without more, imply the existence of undisclosed defamatory facts….

The record, viewed in the light most favorable to the plaintiff, reveals the following relevant facts and procedural history. In 2020, Jeff Manville, the first selectman of the town of Southbury, Edward B. St. John, the first selectman of the town of Middlebury, and Joshua Smith, the superintendent of the Southbury and Middlebury school system, posted a joint statement on Southbury's Facebook page. The statement was written in response to the killing of George Floyd. Several community members, who are not parties to this litigation, expressed disappointment with the content of the statement via comments on the post.

Certain community members claimed that the message in the statement was that "All Lives Matter" instead of that "Black Lives Matter." This led to a heated debate among community members in the comments section of the post. Many of the comments were stridently political and emotionally charged. Throughout the ensuing dialogue, the plaintiff and the defendant separately responded to other community members' comments. Eventually, another member of the public, who is not a party to this litigation, posted that the member's "daughters have had people call them the [N-word]" and advocated for community change.

The plaintiff responded to that member, stating: "Provide names, dates, and location of the behavior please." The member replied: "[A]nd you are?" When the member refused to provide details, the plaintiff posted: "Again, names, times, and location of racial slurs. You went into a PUBLIC FORUM and made accusations of racism. I asked for you to name people who are doing it. You deflect and refuse to answer the question. You then call this harassment. You have no understanding of the word. Since you refuse to document your accusations, I am calling your comment BS." In response to the "and you are" question directed to the plaintiff, the defendant commented, "[the plaintiff is] a troll and a [w]hite [s]upremacist."

The plaintiff responded: "So now I am a [w]hite [s]upremacist? How is that? I want specifics. This is exactly what I mean by the behavior of you nasty hate filled Democrats. You make up whatever you have to. PS, I am half Jewish. Wikipedia definition. White supremacy or white supremacism is the racist belief that white people are superior to people of other races and therefore should be dominant over them. I can say for sure that I have many friends who are [B]lack and Latino (including my adopted mother and brother) who are better human beings than you ever will be." The defendant replied to the plaintiff's post, stating: "[T]he burden of proof that you are not a [w]hite [s]upremacist is on you. I've seen many examples, especially during the election season. Feel free to prove otherwise." …

In the present case, whether the trial court properly granted the defendant's special motion to dismiss turns on whether the term "white supremacist" conveys an objective fact or whether it is a nonactionable opinion. An understanding of a recent decision from this court is helpful to that analysis. In NetScout, the plaintiff, a technology company, alleged that the defendant's published vendor ratings and other statements about it in a market research report were false and defamatory statements…. We clarified that, although an ambiguous statement can sometimes be reasonably understood to convey an implied actionable fact[,] other times, vague and ambiguous statements cannot be "understood by a reasonable juror to imply a factual statement; their ambiguity does not invite the listener to infer a latent factual assertion but, rather, suggests an imprecise and irreducibly subjective meaning that cannot be understood to convey a statement of fact. Thus, the statements are expressions of opinion as a matter of law."

We further explained that, when evaluating whether an ambiguous statement implies defamatory facts or, rather, is merely a statement of opinion, the context in which the statement is made is critical…. To analyze the context of a statement, courts generally consider "(1) whether the circumstances in which the statement is made should cause the audience to expect an evaluative or objective meaning; (2) whether the nature and tenor of the actual language used by the declarant suggest a statement of evaluative opinion or objective fact; and (3) whether the statement is subject to objective verification."

Although we have not had occasion to consider whether the characterization of someone as a "white supremacist" is an actionable fact, other jurisdictions have determined that terms like "white supremacist" or "racist," standing alone, are nonactionable opinions because they lack a precise meaning in our society. [Citing many cases. -EV]

{A small number of courts around the country have declined to dismiss defamation claims involving racial epithets, but those cases involved special considerations not present in this case. See, e.g., Zimmerman v. Buttigieg (M.D. Fla. 2021) (opining that it was inappropriate to dismiss defamation action prior to discovery "because it [was] not clear whether all the facts on which the statements [were] based [were] known to the public"); Brimelow v. New York Times Co. (S.D.N.Y. 2020) (characterizing someone as "an 'open white nationalist'" implies self-identification, which is verifiable fact about that person), aff'd (2d Cir. 2021); see also, e.g., Gibson Bros., Inc. v. Oberlin College (Ohio App. 2022) (observing that statements that refer to history or pattern of discrimination and racial profiling "can be verified as true or false by determining whether there is, in fact, a history or account of racial profiling or discriminatory events")….

Illustrating this lack of specificity are the differing definitions of "white supremacist" that the parties endorse. Prior to characterizing the plaintiff as a "white supremacist," the defendant posted her definition of the term as the "fear … that by including … others you will lose your privilege as a white Christian conservative male. That's what [w]hite [s]upremacy is all about. In reality, there can be room for all of us to be equal, but since we live in a patriarchal, misogynist society it's better for you not to have everyone included for fear that equality for all will take away your power." In her brief to this court, the defendant does not rely on a specific definition of "white supremacist," instead asserting that her definition is "malleable …." Similarly, at the hearing before the trial court, the defendant rejected a dictionary definition of "white supremacist" that was proposed by the plaintiff's attorney "[b]ecause white supremacy and white privilege are … ever-changing in their definition[s], especially … [in light of] how our society is changing and … how marginalized people have [been] oppressed. And it happens because of inequality, not just for race reasons."

The plaintiff, on the other hand, relies on a dictionary and asserts that the definition of "white supremacist" is: (1) "One who believes that white people are racially superior to others and should therefore dominate society"; (2) "[a]n advocate of white supremacy, a person who believes that the white race is inherently superior to other races and that white people should have control over people of other races"; or (3) "a person who believes that the white race is or should be supreme." Given the differing, subjective definitions, and the persuasive precedent from other jurisdictions, we conclude that the defendant's statements were nonactionable opinions because characterizing someone as a "white supremacist" in this context cannot be objectively verified.

The context in which the defendant called the plaintiff a "white supremacist" in the present case further demonstrates the point. The epithet was used during a heated episode of back-and-forth name-calling between the parties, in the midst of a skirmish involving sometimes derogatory language used by other community members commenting on the Facebook post. Each side accused the other of being racist. Indeed, prior to being called a "white supremacist," the plaintiff himself attacked the defendant's viewpoint, labeling one of her comments as "racist and bigoted …." {The plaintiff also accused the defendant of supporting child abuse on the basis of the defendant's work with the gender nonconforming equality movement.} The defendant has not filed a counterclaim alleging that the plaintiff's own statement was defamatory, but the resort to allegations of racism by both parties reveals a scenario in which some angry adults resort to an all too familiar vocabulary of personal invective and rude insults that are unaccompanied by facts. Under these circumstances, a reasonable reader would not have expected the defendant to be stating a fact about the plaintiff….

Nevertheless, the plaintiff contends … that he would prevail on the merits of his complaint because the term "white supremacist" implies that the defendant had knowledge of certain undisclosed facts. Specifically, he asserts that the term "white supremacist," in and of itself, always implies undisclosed facts by insinuating that the plaintiff is someone who advocates for racial superiority and racially motivated criminal acts.

Although the plaintiff correctly notes that a statement that implies undisclosed facts may amount to a defamatory statement, we disagree with the notion that the term "white supremacist" necessarily implies knowledge of undisclosed facts. The term's inherent lack of specificity and factual content is largely what makes it an opinion. Simply calling someone a "white supremacist," without more, can convey a broad array of meanings in our society depending on the context in which the words are expressed and, therefore, does not always imply the existence of undisclosed facts.

{Before the trial court, the plaintiff asserted that the defendant's entire second statement—"[T]he burden of proof that you are not a white supremacist is on you. I've seen many examples, especially during the election season. Feel free to prove otherwise."—implied to the reader that the defendant knew additional defamatory facts that would validate her claim that the plaintiff is a white supremacist. The plaintiff did not advance this argument in his appellate brief or during oral argument before this court. Instead, before this court, the plaintiff abandoned this more nuanced argument in favor of the broad contention that the term "white supremacist," by itself, always implies the existence of certain undisclosed facts. Accordingly, we consider any argument related to the rest of the statement abandoned and decline to address it.}

Moreover, we are not persuaded that, in this case, a reasonable fact finder would believe that the defendant had private, firsthand knowledge supporting her characterization of the plaintiff. Indeed, in the present case, the plaintiff points to no evidence by which a reasonable fact finder could conclude that the defendant knew the plaintiff personally, let alone that the defendant had inside knowledge about the plaintiff. The defendant explained in her affidavit and hearing testimony that she accused the plaintiff of being a "white supremacist" because of his comments on the Facebook post. Any member of the Southbury Facebook group was free to view the publicly available comments that the plaintiff posted, in the context of the roughly forty-six pages of comments that included numerous instances of name-calling, and form his or her own opinion as to whether he or she agreed or disagreed with the defendant's characterization of the plaintiff.

Further, … [t]he defendant did not accuse the plaintiff of any specific instances of wrongful conduct that are commonly associated with hate groups. See, e.g., La Liberte v. Reid (2d Cir. 2020) ("accusation[s] of concrete, wrongful conduct are actionable [whereas] general statements charging a person with being racist, unfair, or unjust are not")…. {If the defendant had connected the plaintiff to a specific hate group instead of a general sociopolitical viewpoint, that statement may have been actionable under certain circumstances. See, e.g., Lega Siciliana Social Club, Inc. v. St. Germaine (Conn. App. 2003) (statement connecting plaintiff to Mafia was libel per se because Mafia is generally known to participate in criminal activities); see also, e.g., Forte v. Jones (E.D. Cal. 2013) (concluding that, although "the allegation of membership in the Ku Klux Klan" would be actionable, "the allegation that a person is a 'racist,' on the other hand," would not be actionable "because the term 'racist' has no [factually verifiable] meaning").} …

We again emphasize that this determination is context- and fact-specific. If the term was connected to the plaintiff's professional occupation or to specifically alleged activities, it might have been actionable under Connecticut defamation law. See, e.g., Benvenuto v. Brookman (Conn. 2024) (referencing trial court's determination that statements about plaintiff being racist in context of his professional capacity as police officer were defamatory per se); see also, e.g., Garrard ex rel. R.C.G. v. Charleston County School District (S.C. 2023) (noting that, although general accusations of racism are nonactionable, term "racist" can be actionable when connected to specific instances)….

For an illustration of how this principle had been applied to allegations of Communism back in the day, see, e.g., McAndrew v. Scranton Republican Pub. Co. (Pa. 1950); Clark v. Allen (Pa. 1964):

It is a matter of widespread common knowledge that countless patriotic Americans sincerely and sharply disagree as to what actions and/or words and/or policies aid the Communist cause, or what show Communist tendencies, or what amounts to an "appeasement" of Communism, or what is a "pro-Communist," or exactly what is meant by the term "soft on Communism."

While these words and expressions have a different meaning or meanings for very many Americans and often are undoubtedly intended to be derogatory, they are not libelous…. To hold these words or any of said expressions libelous would realistically and practically put an effective stop to searching and illuminating discussion and debate with likely dire results.

Anthony R. Minchella represents defendant.

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[Eric Claeys] Choice of Law in Takings Cases After Tyler v. Hennepin County (III)

Let me sum up what I've shown so far in this series about my forthcoming article about the Supreme Court case Tyler v. Hennepin County, Minnesota. As I showed on Monday, the U.S. Supreme Court held that surplus equity constitutes "private property" sufficient to support claims under the Takings Clause. To reach that holding, Chief Justice Roberts (author of the Court's opinion in Tyler) consulted legal sources that seem odd to property lawyers. Takings cases like Webb's Fabulous Pharmacies v. Beckwith seem to hold that, "[b]ecause the Constitution protects rather than creates property interests, the existence of a property interest is determined to reference to existing rules or understandings that seem from an independent source such as state law." But Roberts did not look solely at state law; he also consulted a wide range of sources from early English and American law. As I showed yesterday, however, Roberts was not free-lancing; he was following choice of law principles familiar from federal constitutional law and federal courts doctrine. When state actors seem to be converting a federal constitutional right into a "dead letter," the Court held in Indiana ex rel. Anderson v. Brand, federal courts can look past the most relevant sources of state law and measure a plaintiff's federal constitutional rights independently.

In Tyler, the Court followed Brand's principle in part. In Brand, to measure Anderson's contractual rights, the Court looked past the Indiana judicial opinions about her tenure and studied Indiana statutes about teacher tenure and Indiana contracts case law. In Tyler, Minnesota private creditors don't get to keep surplus equity after foreclosures, the Court noted, and Minnesota state agencies don't get to keep the equity in foreclosed-on property besides real estate.

But in Tyler the Court followed the Brand principle only in part. The Court consulted many legal sources besides Minnesota sources, from early English and American practice, and from its own case law. And even if the Court had followed Brand in every respect, Tyler could not have revolutionized choice of law doctrine in federal takings litigation. Tyler broke some new ground, but it didn't and couldn't displace earlier precedents on different choice of law takings problems.

Today, I want to take up those differences between Tyler and the approach associated with Brand. If yesterday I explained Tyler's federal courts context for property lawyers, today I'm explaining the property- and takings-specific aspects of Tyler for federal courts specialists. (One disclaimer before I do that. I have some sense what federal courts specialists think about Tyler, but I'm nowhere near as confident as I am about what property specialists think. So all you federal courts mavens out there: If you think I'm reading your section of the room wrong, I'll be most grateful to be corrected before my article gets too far into production!)

Tyler departed from the approach associated with Brand in two main respects. Most important, the Court didn't rely wholly on Minnesota law to determine whether Tyler had "private property" under the federal Constitution. Although the Court didn't say so, in its methods it was relying that the "brooding omnipresence in the sky" I mentioned Monday. In other words, to determine what "private property" meant in Tyler's context, the Court looked past Minnesota law and consulted the general law, associated most often with the 1842 case Swift v. Tyson (overruled by Erie Railroad Co. v. Tompkins). Tomorrow, I'll give a qualified defense of the Court's reliance on general law. Here, though, I just want to explain what Chief Justice Roberts and the rest of the Court were doing and assuming, so readers can evaluate the Justices' thinking for themselves.

Will Baude noticed Tyler's reliance on general law on this blog shortly after the case was handed down, and he (and Stephen Sachs, Jud Campbell, Daniel Epps, and Danielle D'Onfro) have  written at length about general law in scholarship. I hope the following summary is appropriately quick. To ascertain what "private property" might mean as a term of art, one might consult seminal treatises and writings about property familiar at the ratification of the Fifth Amendment, find broad definitions of property, and figure out whether particular entitlements in law (like surplus equity) fit those definitions. In any field of law, however, the "general law" consists of a transjurisdictional body of persuasive authority on which national and state courts can rely as they fill in their local common law. So to determine whether a particular entitlement is private property, one might also conduct an analysis a lot like the analysis Chief Justice Roberts conducted in Tyler. That is, one might canvas: relevant English legal history (relevant provisions of Magna Carta and Acts of Parliament); treatises (Blackstone) familiar at the Founding; and contemporaneous American practice (early acts of Congress and state common law). One could also canvas the Supreme Court's later precedent, if and to the extent that it was drawing on the same general law principles evident at the ratification of the Fifth Amendment.

Tyler studied one last set of sources, Minnesota sources showing that the Minnesota legislature had written special rules favoring state agencies in real-estate foreclosures. In his blog post, Will assumed that that line of argument differed from reliance on general law, that it embodies the strategy I'm associated with Brand. Maybe, but not necessarily. That line of argument could also be understood as a continuation of the general law strategy. After all, Minnesota common law, and Minnesota tax foreclosure processes for property besides real estate, accorded with the understanding of surplus equity manifest in the sources probative of the general law.

To repeat (and, to avoid confusion), Tyler doesn't announce that federal courts should always look to general law to determine whether claimants have constitutional private property. Federal courts have authority to cross-check state law to deal with the "dead letter" hazard. My point here is that general law provides one way to conduct that cross-check, one different from Brand's strategy of judging a claimant's rights against the law of the state applied fairly and consistently.

The Tyler strategy also avoids Justice Oliver Wendell Holmes's complaint about the general law, that it hangs over state law like a "brooding omnipresence." Holmes raised that complaint about the general law in a case testing whether the general maritime law preempts state law. Erie Railroad used the same complaint to discredit general law in federal diversity cases. In cases like Tyler, though, when federal courts consult the general law, the general law helps fill in the meaning of a constitutional term of art. And a clause in the federal Constitution is supreme over state law.

At the beginning of this post, I said that Tyler parts ways with Brand in two respects. Here's the second: In the context of takings litigation, Tyler does not mark off the only reservation on the general rule that "private property" is usually determined by consulting state law. A few of the Court's takings cases mark off other exceptions, and Tyler didn't and couldn't displace those exceptions. I run through the various lines of cases in my article, but here are the two most relevant alternate exceptions. One came in Murr v. Wisconsin in 2017. In Murr the Court warned that federal courts can review claimants' legal property interests, under some inchoate federal law reservation, to head off "the risk of gamesmanship by landowners, who might seek to alter [boundary] lines in anticipation of regulation." The Murrs had two lots side by side, one vacant and one built on. The Court was worried that the two lots were in substance one parcel, and that the vacant lot was being left vacant to increase the chances of winning a per se regulatory takings claim (under Lucas v. South Carolina Coastal Council) after a state natural resources agency limited new development in the area. Murr's holding marks off a second reservation on the view that property rights are normally established in state law, to deal with owner-side conduct parallel to the "dead letter" problem.

Second, I strongly doubt that federal courts will follow state law-or consult general law as in Tyler-when state laws threaten entitlements that seem core property interests by any measure. I am thinking in particular of rights of exclusive control and possession over fast land. When state laws trench on those rights, in some cases the Supreme Court doesn't even bother with choice of law analysis, and in the other cases its analysis is conclusory. Take Cedar Point Nurseries v. Hassid, one of the cases that is supposed to confirm the rule that in takings litigation property rights are creatures of state law. Cedar Point Nurseries paid lip service to that rule but didn't follow it. The regulation challenged in the case forced farm operators to let union organizers come onto their farm land for limited times to try to unionize their farmworkers. The Court concluded that the claimants had private property in the legal interests in dispute. The Court said that "one of the most essential sticks in the bundle of rights that are commonly characterized as property" and added a three-case string citation. Maybe, in Cedar Point Nursery and cases like it, federal courts are just holding that the right to exclude is clearly property as a matter of federal law. Maybe they are assuming that the right to exclude is part of property thanks to general law, and that any dispute over that issue was settled in federal law long ago. Either way, they're not following state law, and they're also not studying general law as closely as just happened in Tyler.

Again, though, in this post I explained the legal reasoning the Court applied in Tyler, but I reserved judgment on whether the Tyler strategy is convincing normatively. In my view, the Tyler strategy makes a certain amount of sense, as a second-best strategy. Tomorrow, I'll make that qualified case for Tyler on the merits.

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[David Bernstein] Trump's Executive Order Banning Affirmative Action and DEI Preferences

This is radical stuff, at least relative to the status quo in the government for decades:

01/21/25
EXECUTIVE ORDER
ENDING ILLEGAL DISCRIMINATION AND
RESTORING MERIT-BASED OPPORTUNITY
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered:

Section 1. Purpose. Longstanding Federal civil-rights laws protect individual Americans from discrimination based on race, color, religion, sex, or national origin. These civil-rights protections serve as a bedrock supporting equality of opportunity for all Americans. As President, I have a solemn duty to ensure that these laws are enforced for the benefit of all Americans.

Yet today, roughly 60 years after the passage of the Civil Rights Act of 1964, critical and influential institutions of American society, including the Federal Government, major corporations, financial institutions, the medical industry, large commercial airlines, law enforcement agencies, and institutions of higher education have adopted and actively use dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called "diversity, equity, and inclusion" (DEI) or "diversity, equity, inclusion, and accessibility" (DEIA) that can violate the civil-rights laws of this Nation.

Illegal DEI and DEIA policies not only violate the text and spirit of our longstanding Federal civil-rights laws, they also undermine our national unity, as they deny, discredit, and undermine the traditional American values of hard work, excellence, and individual achievement in favor of an unlawful, corrosive, and pernicious identity-based spoils system. Hardworking Americans who deserve a shot at the American Dream should not be stigmatized, demeaned, or shut out of opportunities because of their race or sex.

These illegal DEI and DEIA policies also threaten the safety of American men, women, and children across the Nation by diminishing the importance of individual merit, aptitude, hard work, and determination when selecting people for jobs and services in key sectors of American society, including all levels of government, and the medical, aviation, and law-enforcement communities. Yet in case after tragic case, the American people have witnessed first-hand the disastrous consequences of illegal, pernicious discrimination that has prioritized how people were born instead of what they were capable of doing.

The Federal Government is charged with enforcing our civil-rights laws. The purpose of this order is to ensure that it does so by ending illegal preferences and discrimination.

Sec. 2. Policy. It is the policy of the United States to protect the civil rights of all Americans and to promote individual initiative, excellence, and hard work. I therefore order all executive departments and agencies (agencies) to terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements. I further order all agencies to enforce our longstanding civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.

Sec. 3. Terminating Illegal Discrimination in the Federal Government. (a) The following executive actions are hereby revoked:
(i) Executive Order 12898 of February 11, 1994 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations);
(ii) Executive Order 13583 of August 18, 2011 (Establishing a Coordinated Government-wide Initiative to Promote Diversity and Inclusion in the Federal Workforce);
(iii) Executive Order 13672 of July 21, 2014 (Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity); and
(iv) The Presidential Memorandum of October 5, 2016 (Promoting Diversity and Inclusion in the National Security Workforce).
(b) The Federal contracting process shall be streamlined to enhance speed and efficiency, reduce costs, and require Federal contractors and subcontractors to comply with our civil-rights laws. Accordingly:
(i) Executive Order 11246 of September 24, 1965 (Equal Employment Opportunity), is hereby revoked. For 90 days from the date of this order, Federal contractors may continue to comply with the regulatory scheme in effect on January 20, 2025.
(ii) The Office of Federal Contract Compliance Programs within the Department of Labor shall immediately cease:
(A) Promoting "diversity";
(B) Holding Federal contractors and subcontractors responsible for taking "affirmative action"; and
(C) Allowing or encouraging Federal contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.
(iii) In accordance with Executive Order 13279 of December 12, 2002 (Equal Protection of the Laws for Faith-Based and Community Organizations), the employment, procurement, and contracting practices of Federal contractors and subcontractors shall not consider race, color, sex, sexual preference, religion, or national origin in ways that violate the Nation's civil rights laws.
(iv) The head of each agency shall include in every contract or grant award:
(A) A term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all applicable Federal anti-discrimination laws is material to the government's payment decisions for purposes of section 3729(b)(4) of title 31, United States Code; and
(B) A term requiring such counterparty or recipient to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.
(c) The Director of the Office of Management and Budget (OMB), with the assistance of the Attorney General as requested, shall:
(i) Review and revise, as appropriate, all Government-wide processes, directives, and guidance;
(ii) Excise references to DEI and DEIA principles, under whatever name they may appear, from Federal acquisition, contracting, grants, and financial assistance procedures to streamline those procedures, improve speed and efficiency, lower costs, and comply with civil-rights laws; and
(iii) Terminate all "diversity," "equity," "equitable decision-making," "equitable deployment of financial and technical assistance," "advancing equity," and like mandates, requirements, programs, or activities, as appropriate.

Sec. 4. Encouraging the Private Sector to End Illegal DEI Discrimination and Preferences. (a) The heads of all agencies, with the assistance of the Attorney General, shall take all appropriate action with respect to the operations of their agencies to advance in the private sector the policy of individual initiative, excellence, and hard work identified in section 2 of this order.
(b) To further inform and advise me so that my Administration may formulate appropriate and effective civil-rights policy, the Attorney General, within 120 days of this order, in consultation with the heads of relevant agencies and in coordination with the Director of OMB, shall submit a report to the Assistant to the President for Domestic Policy containing recommendations for enforcing Federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI. The report shall contain a proposed strategic enforcement plan identifying:
(i) Key sectors of concern within each agency's jurisdiction;
(ii) The most egregious and discriminatory DEI practitioners in each sector of concern;
(iii) A plan of specific steps or measures to deter DEI programs or principles (whether specifically denominated "DEI" or otherwise) that constitute illegal discrimination or preferences. As a part of this plan, each agency shall identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars;
(iv) Other strategies to encourage the private sector to end illegal DEI discrimination and preferences and comply with all Federal civil-rights laws;
(v) Litigation that would be potentially appropriate for Federal lawsuits, intervention, or statements of interest; and
(vi) Potential regulatory action and sub-regulatory guidance.

Sec. 5. Other Actions. Within 120 days of this order, the Attorney General and the Secretary of Education shall jointly issue guidance to all State and local educational agencies that receive Federal funds, as well as all institutions of higher education that receive Federal grants or participate in the Federal student loan assistance program under Title IV of the Higher Education Act, 20 U.S.C. 1070 et seq., regarding the measures and practices required to comply with Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023).

Sec. 6. Severability. If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this order and the application of its provisions to any other persons or circumstances shall not be affected thereby.

Sec. 7. Scope. (a) This order does not apply to lawful Federal or private-sector employment and contracting preferences for veterans of the U.S. armed forces or persons protected by the Randolph-Sheppard Act, 20 U.S.C. 107 et seq.
(b) This order does not prevent State or local governments, Federal contractors, or Federally-funded State and local educational agencies or institutions of higher education from engaging in First Amendment-protected speech.
(c) This order does not prohibit persons teaching at a Federally funded institution of higher education as part of a larger course of academic instruction from advocating for, endorsing, or promoting the unlawful employment or contracting practices prohibited by this order.

Sec. 8. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department, agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to and does not create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

THE WHITE HOUSE,
January 21, 2025.

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[Josh Blackman] Today in Supreme Court History: January 22, 1890

1/22/1890: Hans v. State of Louisiana argued.

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[Josh Blackman] DHS Will Enforce Expedited Removal To "Full Scope Of Its Statutory Authority"

On Tuesday evening, DHS announced that it would expand expedited removal to the full extent authorized by statute. Expedited removal empowers the government to remove an alien with far fewer processes and protections. Now, expedited removal would apply regardless of where the alien is apprehended.

The order provides:

I designate for expedited removal the following categories of aliens not currently designated: (1) Aliens who did not arrive by sea, who are apprehended anywhere in the United States more than 100 air miles from a U.S. international land border, and who have been continuously present in the United States for less than two years; and (2) aliens who did not arrive by sea, who are apprehended within 100 air miles from a U.S. international land border, and who have been continuously present in the United States for at least 14 days but for less than two years. Each alien placed in expedited removal under this designation bears the affirmative burden to show to the satisfaction of an immigration officer that the alien has been present in the United States continuously for the relevant period. This designation does not apply to aliens who arrive at U.S. ports of entry, because those aliens are already subject to expedited removal. Nor does this designation apply to or otherwise affect aliens who satisfy the expedited removal criteria set forth in any of the previous designations.

I wrote about expedited removal in this post from 2017. Trump was thwarted in enacting this sort of policy in his first administration, but it seems he is doing so right away in the second administration.

Get ready for litigation about whether this policy violates the Suspension Clause. Peter Margulies wrote about this issue in 2020.

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[Josh Blackman] SCOTUS GVRs Capital Case After 13 Reschedules And 10 Relists

, a capital case has been floating around a year. On January 22, 2024, the cert petition was filed. And on January 21, 2025, the Supreme Court GVR'd the case. The per curiam begins

An Oklahoma jury convicted Brenda Andrew of murdering her husband, Rob Andrew, and sentenced her to death. The State spent significant time at trial introducing evidence about Andrew's sex life and about her failings as a mother and wife, much of which it later conceded was irrelevant. In a federal habeas petition, Andrew argued that this evidence had been so prejudicial as to violate the Due Process Clause. The Court of Appeals rejected that claim because, it thought, no holding of this Court established a general rule that the erroneous admission of prejudicial evidence could violate due process. That was wrong. By thetime of Andrew's trial, this Court had made clear that when "evidence is introduced that is so unduly prejudicial that itrenders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief." Payne v. Tennessee, 501 U. S. 808, 825 (1991).

John Elwood offered this summary of the history at Petitions to Watch:

(Rescheduled before the March 28, April 5, April 12, April 19, April 26, May 9, May 16, May 23, May 30, June 6, June 13, June 20, and July 1 conferences; relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15, Nov. 22, Dec. 6, Dec. 13 and Jan. 10 conferences.)

Can that be right? 13 reschedules and ten relists? That is a lot of arm-twisting and cajoling to get a GVR. One of my proposals for bilateral judicial reform is that the Justices would have to resolve a cert petition within 90 days after it is filed. As they say, grant or get off the pot.

For certain, Justices Thomas and Gorsuch dissented from the order. And I doubt Justice Kavanaugh would note a dissent from this fact pattern, in particular. Justice Alito concurred in the judgment  If I had to guess, it took the liberals some time to persuade Justice Barrett to go along with a GVR. The entire case is about evidence. In particular, evidentiary issues concerning slurs against women. See Footnote 1:

Similarly, the dissent asserts thatAndrew falsely accuses the prosecution of calling her a "slut puppy" in closing argument. Post, at 7, n. 3 (opinion of THOMAS, J.). Whether the prosecution quoted something it believed Andrew once said to suggest to the jury that Andrew herself was a "slut puppy," or simply to recite an alleged abusive phone call, is a question of fact for the Tenth Circuit to resolve.

Note to practitioners: if you want Justice Barrett's vote, make the case about evidence.

Just yesterday I noted that Justice Barrett may be the weakest link among conservatives in capital cases. This case is another data point.

This is one reversal of the Oklahoma Court of Criminal Appeals. Let's see what happens in Glossip.

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[Josh Blackman] President Trump's Invasion Executive Order

President Trump's order concerning an invasion at the southern border is the most full-throated endorsement of Article II powers I've seen in some time.

First, the opinion cites U.S. ex rel. Knauff v. Shaughnessy (1950), which recognized that "The exclusion of aliens is a fundamental act of sovereignty . . . [that] is inherent in the executive power to control the foreign affairs of the nation." During the travel ban litigation, several litigants suggested that this case was no longer good law. But Trump is invoking it, head-on.

Second, Trump explains one of the grand bargains behind the Constitution:

In joining the Union, the States agreed to surrender much of their sovereignty and join the Union in exchange for the Federal Government's promise in Article IV, Section 4 of the U.S. Constitution, to "protect each of [the States] against Invasion."

This provision is part of the seldom-studied guarantee clause.

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

It is widely understood under Luther v. Borden that a determination under the Guarantee Clause is a political question. Then again, in 2021, none of the Justices could remember the name of the case, and Tara Grove has challenged that conventional wisdom. If a finding of an invasion is a political question, there is little for the judiciary to do to second guess that finding--that includes Judge Ezra, who I suspect will be a lot less busy over the next four years.

Third, Trump concludes that the federal government has failed this obligation.

I have determined that the current state of the southern border reveals that the Federal Government has failed in fulfilling this obligation to the States and hereby declare that an invasion is ongoing at the southern border, which requires the Federal Government to take measures to fulfill its obligation to the States.

This finding is significant. Texas has argued there is an invasion, which activates certain powers in Article I, Section 10, Clause 3. Specifically, a state can "engage in War, [when] actually invaded." And Trump has made a declaration of invasion. I am skeptical that the courts can second-guess this finding. Judge Ho addressed this point in United States v. Abbot:

Courts have no business deciding which national security threats are sufficiently serious to warrant a military response, and which are not. Supreme Court precedent and longstanding Executive Branch practice confirm that, when a President decides to use military force, that's a nonjusticiable political question not susceptible to judicial reversal. I see no principled basis for treating such authority differently when it's invoked by a Governor rather than by a President. If anything, a State's authority to "engage in War" in response to invasion "without the Consent of Congress" is even more textually explicit than the President's.

Whatever role the Governor has to declare an invasion, I think it pretty clear that the President can declare an invasion. And this determination would seem to be a political question.

Fourth, Trump argues that the INA does not "occupy the field," and the President retains inherent authority to exclude and remove invading aliens:

The INA does not, however, occupy the Federal Government's field of authority to protect the sovereignty of the United States, particularly in times of emergency when entire provisions of the INA are rendered ineffective by operational constraints, such as when there is an ongoing invasion into the States. The President's inherent powers to control the borders of the United States, including those deriving from his authority to control the foreign affairs of the United States, necessarily include the ability to prevent the physical entry of aliens involved in an invasion into the United States, and to rapidly repatriate them to an alternative location. Only through such measures can the President guarantee the right of each State to be protected against invasion.

And Trump uses this power to block entry of all invaders at the southern border:

By the power vested in me by the Constitution and the laws of the United States, I have determined that the current situation at the southern border qualifies as an invasion under Article IV, Section 4 of the Constitution of the United States.  Accordingly, I am issuing this Proclamation based on my express and inherent powers in Article II of the Constitution of the United States, and in faithful execution of the immigration laws passed by the Congress, and suspending the physical entry of aliens involved in an invasion into the United States across the southern border until I determine that the invasion has concluded.

Fifth, Trump is making an Article II override argument. Specifically, separate and apart from Section 1182(f), the President has inherent power to deny entry to invaders, and repatriate them elsewhere. Trump uses this argument to override other statutory protections:

Sec. 2. Imposition of Restrictions on Entry for Aliens Invading the United States. I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), that aliens engaged in the invasion across the southern border of the United States on or after the date of this proclamation are restricted from invoking provisions of the INA that would permit their continued presence in the United States, including, but not limited to, section 208 of the INA, 8 U.S.C. 1158, until I issue a finding that the invasion at the southern border has ceased.

Section 1158 concerns asylum. Yes, Trump is arguing his Article II power overrides congressional asylum protections, some of which may in fact implement treaties. This provision is like an exam fact pattern to test the Supremacy Clause.

Sixth, Trump also delegates his full constitutional authority to the Secretary of Homeland Security to stop the invasion:

Sec. 4.  Constitutional Suspension of Physical Entry.  Under the authorities provided to me under Article II of the Constitution of the United States, including my control over foreign affairs, and to effectuate the guarantee of protection against invasion required by Article IV, Section 4, I hereby suspend the physical entry of any alien engaged in the invasion across the southern border of the United States, and direct the Secretary of Homeland Security, in coordination with the Secretary of State and the Attorney General, to take appropriate actions as may be necessary to achieve the objectives of this proclamation, until I issue a finding that the invasion at the southern border has ceased.

This is a sweeping delegation of authority from the President to his cabinet.

Specifically, the Secretary can "repel, repatriate, or remove" aliens, as provided for by Article II of the Constitution:

Sec. 5.  Operational Actions to Repel the Invasion.  The Secretary of Homeland Security, in coordination with the Secretary of State and the Attorney General, shall take all appropriate action to repel, repatriate, or remove any alien engaged in the invasion across the southern border of the United States on or after the date of this order, whether as an exercise of the suspension power in section 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), or as an exercise of my delegated authority under the Constitution of the United States, until I issue a finding that the invasion at the southern border has ceased.

Unlike some of the other orders, which go into effect in the future, the invasion order is effective immediate. I have not seen a challenge, yet.

The birthright citizenship order has been getting the most attention. But the invasion order arises in the area of most constitutional uncertainty. There just isn't much law to go on here, and the courts will flounder trying to decide these issues.

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