Even if an actual invasion were ongoing, Trump would not have that authority. In the foundational separation-of-powers case Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court established that the president, during wartime as well as peacetime, cannot bypass laws that Congress has constitutional authority to enact—regardless of whether the president also has constitutional authority in that area. The president may disregard statutory constraints only if Congress is trespassing on powers that the Constitution commits exclusively to the president. There is no question, however, that Congress has authority under the Constitution to enact immigration laws, including laws that allow undocumented individuals to seek asylum. The president accordingly must follow those laws.
Trump’s executive orders are unprecedented in many respects. Nonetheless, there are some lessons we can learn from history. This is not the first time that a president has falsely claimed an “invasion” across the southern border. In 1846, President James Polk proclaimed that Mexican forces had “passed the boundary of the United States” and “invaded our territory and shed American blood upon the American soil.” Within two days, he secured a congressional declaration of war.
Although Polk correctly identified the elements of an “invasion”—armed hostilities that require the government to meet force with force—he lied about the facts. Two years later, when the truth came out, then-Representative Abraham Lincoln charged that Polk had “unnecessarily and unconstitutionally” secured a war authorization through misrepresentation. Led by Lincoln, the House of Representatives passed language to censure Polk for unlawfully proclaiming an “invasion” to aggrandize presidential power.
What Lincoln and his fellow lawmakers did was brave; the Mexican-American War was still popular in 1848. But they understood that the U.S. system of government only works when the people can rely on the president to faithfully execute the laws.
Today, the country faces an even graver situation. The president has not only misrepresented the facts; he has misrepresented the Constitution itself. He has claimed unprecedented authority to ignore and override Congress whenever he proclaims an “invasion,” real or metaphorical. Congress should muster the courage required by these extraordinary times and condemn Trump’s radical attempts to usurp and abuse power.