We Shouldn’t ‘Emergency’ Our Way Around the Constitution

By Rich Lowry

Wednesday, May 14, 2025

 

President Lincoln did it, so why shouldn’t President Trump?

 

The White House says it’s considering whether it can suspend habeas corpus, the ancient Anglo-American writ that requires the government to demonstrate to a judge the factual and legal basis for detaining someone.

 

Notably, the administration’s loss on due process at the Supreme Court in an Alien Enemies Act case involved the Court saying that would-be deportees have the right to pursue habeas challenges to their detentions.

 

This would be the White House, in effect, saying to the courts, “Well, how do you like your habeas now?”

 

This is unlikely to happen, but it’s worth dwelling on because the reasoning that would theoretically justify such a move is very similar to what we’ve seen with regard to the Alien Enemies Act and Trump’s tariffs.

 

There is an argument that the executive can suspend habeas corpus without Congress despite its placement in Article I of the Constitution, but there’s no doubt that, per the unambiguous text of the Constitution, it requires an invasion or a rebellion.

 

Lincoln had one of those — in fact, when he first suspended habeas corpus, there was some doubt that the Union could get troops from the North to Washington, D.C., through a restive Maryland.

 

Does Trump have one? Well, yes, assuming it can be manufactured like the supposed act of war by Venezuela that led to the invocation of the Alien Enemies Act and the alleged trade-deficit emergency that justifies Trump unilaterally imposing tariffs.

 

In these instances, “invasion” and “emergency” are words used to create loopholes, rather than real things.

 

No one should begrudge the executive branch its legitimate wartime powers, which are considerable. But the executive shouldn’t create a make-believe war for the sake of tapping into powers that are convenient in pursuit of ordinary policy objectives — namely, immigration enforcement and protectionism.

 

It’s not “break glass in case of emergency,” but declare an emergency to break glass.

 

What we’ve experienced on our southern border the last several decades is not a military invasion; it has certainly been a large-scale movement of people and one that politicians and commentators loosely call an “invasion,” but there is no military aspect to it whatsoever.

 

When a country is invaded, the enemy forces don’t immediately begin looking for jobs and working as Grubhub delivery guys. There are no Russian soldiers working as busboys in restaurants in the Donbas right now.

 

Besides, the idea that there is an invasion proves too much. If our country is being invaded by, say, members of Tren de Aragua, that doesn’t merely justify deporting them back home posthaste, but waging a war against Venezuela to force it to cease its acts of aggression.

 

If we want to do only the former (the deportations) and it’s unthinkable that we would do the latter (respond militarily), it’s a pretty good sign that there is no invasion except as a pretext to unlock powers not otherwise available.

 

If there’s one thing we’ve learned about the American people over our history, by the way, it’s that we don’t take kindly to attacks against us and react with great ferocity when they occur.

 

Here, we have to posit that a military assault is happening against America that no one has noticed and no one is particularly exercised by.

 

I oppose illegal immigration. It makes a mockery of our laws. It puts downward pressure on the wages of lower-scale workers and taxes our public services. Everyone who has come here illegally should go home. All that can be true, though, without illegal immigrants constituting enemy combatants, or spies and saboteurs.

 

It is true that a movement of people can represent an invasion in a meaningful sense of the term. The barbarian migrations into the Roman Empire and the arrival of Germanic tribes in post-Roman Britain were, to varying degrees depending on the exact circumstances, both settlements of people and hostile acts.

 

That’s not what we are talking about here.

 

For, say, Central American migrants to reprise the role of the Vandals in Ancient Rome, they’d have to occupy the breadbasket of our country, Kansas, the way the Vandals took North Africa, and then proceed to sack Washington, D.C.

 

Also, the act of war being perpetrated against us via illegal immigration would implicate a vast array of countries, including Mexico, Honduras, Guatemala, El Salvador, Haiti, Venezuela, China, and India, among others.

 

They’re all invading us simultaneously?

 

I sympathize entirely with the goal of getting illegal immigrants out of the country as soon as possible. But it’s strange that the administration is reaching for dubious powers when it hasn’t pursued means that are unquestionably within its authority, especially extensive, forceful worksite enforcement to deny illegal immigrants jobs and punish those who employ them.

 

There’s no doubt that Lincoln was creative in his use of, and justification for, wartime powers. No one at the time was in any doubt, though, that he faced a no-kidding rebellion and military threat that weren’t a product of clever wordplay or motivated reasoning.