The classic definition of an invasion is the incursion of an armed force into a country, the paradigm example being the Allied landing at Normandy in 1944. Normally, it means an army arriving to conquer or plunder.
By this definition, the entry of an immigrant into the United States—whether seeking asylum or even illegally seeking employment—could never reasonably be considered an invasion. Legal dictionaries, however, sometimes define “invasion” more broadly as “the act or occurrence of entering a place or domain in an unauthorized manner.” This might apply to a home invasion by a burglar or a computer hack, neither of which definitions require armed force.
In the Orwellian world of Donald Trump, however, the lie “passes into history and becomes the truth.” On the campaign trail, he repeatedly referred to migrants as “invaders,” however inappropriate the characterization.
In 2023, during the Biden years, hard-right Texas Governor Greg Abbott claimed that his state was being “invaded” and the state constitution empowered him to place buoy barriers in the Rio Grande River. The bright orange chain—anchored to the riverbed by concrete blocks—was one of many attempts to stem illegal immigration and drug trafficking. The Biden administration sued, arguing the buoys violated federal law; Mexico demanded their removal. Lower courts ordered them moved, but the Fifth Circuit—dominated by Trump appointees—upheld Abbott’s action, while sidestepping the question of whether it was justified as a response to an “invasion.”
The Fifth Circuit’s reach is significant: it covers Louisiana and Texas, giving it outsize sway over immigration. Three of its judges are now considering whether Trump can invoke the Alien Enemies Act, an 18th-century wartime law, to respond to what he calls an “invasion” by Venezuelan gang members. Trump has also used the lavish concept of invasion to authorize his inhumane actions in summarily deporting the Venezuelan migrants to a hellhole prison in El Salvador. Those close to Trump have also discussed playing the invasion card to suspend the writ of habeas corpus.
One judge went further than his colleagues: James C. Ho, appointed by Trump in 2018. Born in Taiwan and a naturalized U.S. citizen since age nine, Ho wrote separately to endorse the notion that illegal immigration can constitute an “invasion” under the Constitution—empowering governors to take military action without congressional consent.
Without evidence, Ho asserted that states can repel invasion “by hostile foreign individuals as well as foreign sovereigns,” effectively presuming all unauthorized immigrants to be hostile actors. Is he claiming that all who risk the dangerous waters of the Rio Grande are criminals or terrorists, when many may be seeking asylum or better work?
Citing Article I, Section 10, which forbids states from “engag[ing] in War” without Congress unless “actually invaded” or in “imminent danger,” Ho argued that states may act without Congress in such cases involving invading “hostile foreign individuals.” He is the first and only federal judge to take that position. He also claimed that a majority of governors approved of Abbott’s decision and that former senior FBI officials told Congress the immigration crisis constitutes “an invasion of the homeland.”
Ho leaned on a dissent by his mentor, Justice Clarence Thomas, asserting that warmaking belongs to politically accountable actors. He then argued that deciding whether an invasion has occurred is a “non-justiciable political question” for the executive and Congress, not the courts (in other words, a unitary executive). But interpreting constitutional language is exactly what courts do; determining whether a state has been “actually invaded” is a legal question requiring fact-finding.
Alas, Ho is a politically partisan judge whose concept of unreviewable unchecked executive power is almost comical. He must surely be a fixture on Trump’s shortlist for the Supreme Court. He was one of the appellate judges appearing on a White House shortlist of potential replacements for Justice Ruth Bader Ginsburg during Trump 1.0. Festooned with lavish endorsements ranging from powerful Texas Republicans, the conservative Federalist Society, and hard right activist groups, Ho is burnished with all the MAGA qualifications. Mike Davis, president of the Article III Project, a pro-Trump judicial advocacy group told The New York Times that Ho was a model Trump-appointed judge. “On every crucial but controversial legal issue,” he said, “Jim Ho is constantly the tip of the spear.”
“Tip of the spear,” indeed, without question!
Ho got to know all the right people. After law school, he clerked for Thomas and later served as the solicitor general of Texas under Abbott, then the state’s attorney general. In 2016, he worked for Senator Ted Cruz’s presidential campaign. In 2018, when he was sworn as a circuit judge standing beside Justice Thomas at the home of Harlan Crow, the Dallas billionaire known for his lavish gifts to Thomas. Cruz posted a photo of the moment on social media.
On the bench, Ho has taken staunchly conservative positions. In 2023, he wrote a dissent arguing that a 20-year-old decision by the Food and Drug Administration to approve the abortion drug mifepristone should be overturned, because the agency had improperly used regulations for “serious or life-threatening illnesses,” which pregnancy was not. His position eventually was rejected by the Supreme Court.
Ho has even aligned himself with the Trump agenda on birthright citizenship. In 2006, writing a piece in a legal periodical he gave unequivocal approval to the constitutional guaranty of birthright citizenship. The comment endured in influence for two decades. Justice Sonia Sotomayor even cited it this year in a dissent. But a week after Trump was re-elected, Ho did a swiveling volte face, giving an interview to a conservative legal blog in which he appeared to back Trump’s view that the Fourteenth Amendment does not guarantee citizenship for all children born on U.S. soil. Birthright citizenship, he argued, “obviously doesn’t apply in case of war or invasion.”
Ho is “invasion”-obsessed. He may have better intellectual chops and more judicial experience than, say, Emil Bove, another possible Trump choice for a seat on the Supreme Court, but he matches Bove pound for pound in his judicial adherence to Trump’s political agenda. In his view, war or invasion exists because the executive says it does—no originalism, no textualism, no precedent required.
Next Orwellian thing we may hear is that the Martians are coming. When it comes to invasion, Trump is Humpty Dumpty: “When I use a word, it means just what I choose it to mean, neither more nor less.
The post Have We Been Invaded? appeared first on Washington Monthly.
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