What’s in a word like “invasion”—the one the Trump administration is tossing around in connection with the Alien Enemies Act and the writ of habeas corpus? After all, don’t Americans share a common understanding of what an invasion is?
Apparently not, and that should worry us. People have been abusing what words mean for years. The word “emergency” has been abused by both political parties for decades. Since the 1970s, the federal government has declared 31 emergencies that remain in effect today. Permanent states of emergency are bad. They mean we can’t tell a real emergency from an ordinary policy.
And some word abuse must be laid at the door of the Democrats, too. To some of them, diversity too often meant anybody but white men. Equity meant justice for some at the expense of others. Inclusion to many on the far-left meant exclusion of races and genders out of favor. The rhetoric wasn’t explicit, but the results were on display for all to see. It was an Achilles Heel for Democrats, and Republicans put an arrow through it.
But Trump’s abuse of the notion of an “invasion” makes the left-wing rhetoric look mild by comparison. It’s no surprise. No one has been more willing to whip the truth out of a word than Donald Trump. Trump uses his social media “Truth Social” to be viciously anti-social and utterly untruthful. Trump became the first president to label a clear election loss a landslide win—with violence at the U.S. Capitol as a result.
But his definition of what it means to be invaded is positively explosive. To invoke the Alien Enemies Act of 1798, Trump declared the country was suffering an “invasion” by Tren de Aragua, a Venezuelan gang he proclaimed an arm of the Venezuelan government. When intelligence analysts told him the links between Tren de Aragua and the Venezuelan government he relied on didn’t exist, the analysts were removed from their posts.
That’s in part because the word “invasion” still has some work to do in the eyes of Trump and his henchmen. This work is far more sinister. It is a direct attack on habeas corpus, the words that for 800 years have been the greatest bulwark against tyranny in legal systems descended from the English common law.
The right to file a writ of habeas corpus in court is the right to challenge your arrest. It is what keeps people from disappearing in the night when they displease the executive branch of government. If you can’t get a court to stop a tyrant from arresting you, no American’s life or property is safe.
Trump officials know that, in an invasion, the Constitution permits habeas corpus to be suspended to the extent it’s needed to secure public safety. The Trump administration is now toying with the notion of suspending the writ because of this fictitious “invasion.”
But if the writ goes, the country goes with it. It doesn’t matter that Trump may purport to suspend it only for illegal aliens. If he does, who gets to decide who is an illegal alien? He does of course! And Americans need to get it through their heads that suspension of the writ would mean that you would have no one to complain to if you were picked up by the police and deported no matter how long you have been a citizen.
The Supreme Court had a chance to end the invasion charade last week when it considered one of the deportation cases. It chose a more limited approach that postponed a reckoning. Kudos to Justice Brett Kavanaugh for urging that it postpone no further. Hopefully, he sees the danger under the Enemy Aliens Act and knows that only Congress can suspend habeas corpus. The Court should take up the issue. It should rule that this country isn’t under invasion for the purposes of either of these laws.
If the Court doesn’t spurn the bogus invasion claim, the implications are enormous. Remember, the writ can also be suspended in cases of “rebellion.” The first definition Merriam-Webster’s dictionary gives to the word “rebellion” is “opposition to one in authority or dominance.”
Imagine what Trump could do with that one.
Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.
The views expressed in this article are the writer’s own.
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