January 2025
What is a proclamation?
A proclamation is a written presidential directive similar to an executive order. It uses the President’s executiveauthority and is outside of legislation approved by Congress.
The Immigration and Nationality Act (INA) provides that the President may restrict or suspend entry of foreignnationals “by proclamation, and for such period as he shall deem necessary,” under 8 U.S.C. §1182{f). In the case of Trump v. Hawaii, the Supreme Court determined that “by its plain language, §1182{f) grants the President broad discretion to suspend the entry of aliens into the United States.”
Who are the “aliens” referred to in the Invasion Proclamation?
The term “alien” in this sense is a term of art as it is defined in U.S. law as “any person not a citizen or national of the United States.” A “national” of the U.S. is defined under law as a U.S. citizen or a person who, though not acitizen of the United States, “owes permanent allegiance to the United States.”
What does the “Invasion” Proclamation do?
This Proclamation references Article IV, Section 4 of the Constitution which guarantees that the federal government will protect each state from invasion. The President states that an “invasion is ongoing at the southern border, which requires the Federal Government to take measures to fulfill its obligation to the States.”
The Proclamation outlines three key actions directed from the Trump Administration to address what it has described as an “invasion at the southern United States border”:
Suspends all entry into the United States of “aliens engaged in the invasion across the southern border” from the southern border until the President “issues a finding that the invasion at the southern border has ceased (Section 1 and Section 4).
Prohibits asylum applications for “aliens engaged in the invasion of the southern border” until the President “issues a finding that the invasion at the southern border has ceased” (Section 2).
Prohibits asylum applications for persons who did not provide Federal officials with sufficient medical information and background information (including criminal history) before entry (Section 3).
Who will be carrying this work out?
The Proclamation mandates cooperation between the Department of Homeland Security, the State Department, and the Attorney General to take whatever actions necessary to repel, repatriate, or remove any person engaged in the invasion across the southern border. (Sections 4 and 5)
Are there any carve outs for specific populations in Section 1 which restricts access to asylum?
No. There are no exceptions for unaccompanied children, pregnant women, or particularly vulnerable individuals. Additionally, “Aliens engaged in the invasion across the southern border” is not defined in the proclamation.
Is there a timeline or metrics for when the President will find that an “invasion” is over?
No. There is no timeline for the Presidential “finding that the invasion across the southern border has ceased.” nor are there any metrics, data points or other indicators that would signal a cessation of the determination of an”invasion”.
