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Trump‘s effort to shut down asylum applications by declaring an “invasion” at the southern was rejected by a federal district judge last Wednesday. In reviewing the Judge’s decision, something unrelated, at least not directly, to the issue at hand caught my eye. It’s how careful Trump is to try to cloak these sorts of extreme actions in the legitimacy of the law.
In the Proclamation, “GUARANTEEING THE STATES PROTECTION AGAINST INVASION,” that Trump issued on his first day in office, the one that prevents migrants from seeking asylum based on the assertion that there is no way to assess the risk they present, he wrapped the constitution and the laws around himself like armor. The proclamation starts out with Trump advising: “By the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby proclaim…” And then he guts asylum.
He reiterates his authority midway through, proclaiming:
“By the power vested in me by the Constitution and the laws of the United States, I have determined that the current situation at the southern border qualifies as an invasion under Article IV, Section 4 of the Constitution of the United States. Accordingly, I am issuing this Proclamation based on my express and inherent powers in Article II of the Constitution of the United States, and in faithful execution of the immigration laws passed by the Congress, and suspending the physical entry of aliens involved in an invasion into the United States across the southern border until I determine that the invasion has concluded.”
Sure, this is unremarkable to some extent. Presidents are supposed to cite to (or better yet, know and understand) the legal authority they have to act. This would have been unsurprising in an executive order issued by Bush, Obama, or Biden. But here, it’s worth noting. The spoiler is the inclusion of “in faithful execution of the immigration laws passed by Congress” when what he’s doing is not such thing. Much of what Trump does pushes the limits of his Article II powers or encroaches on the powers of other branches of government. When we talk about it, we couch it in those terms: unlawful, unconstitutional.
But that’s not how Trump sees it. In his world, if he decrees that there is an invasion, then there’s an invasion. It’s so convenient got him that these laws exist that give him the ability to do away with asylum for pesky people fleeing horrible, dangerous situations at the stroke of a pen. If he says it’s an invasion, then no more asylum for the wrong kind of people, the ones crossing over our southern border.
In Trump’s world, courts should not have the ability to oversee or, worse still, overrule his decisions. Trump saying that there is an invasion is, of course, specious. If the statute had given him the power to end asylum if a unicorn showed up on the Texas border, Trump would have proudly announced that there was a whole herd. Now, a court has called him out for it, and there will, yet again, be an appeals process that will end with the Supreme Court deciding, yet again, how much power they are willing to imbue the runaway executive with. But the point we shouldn’t lose sight of here is that Trump craves the trappings of legitimacy, of the law.
Trump isn’t trying to declare himself a dictator. He’s no Papa Trump. Instead, he’s invoking the pretense that everything he does is legal. He’s using language like this so he looks…just like any other president. He does it so he can tell his followers how faithfully he is executing the laws. And he’s doing it because he knows that there are some lines even he can’t cross. He learned that when the public uproar forced him to return Kilmar Abrego Garcia to this country after the administration violated his due process rights. Americans, an overwhelming majority of us, won’t stand for it if Trump declares himself king—that little debacle sparked the entire country to protest.
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Trump needs the appearance of lawfulness to protect him. At the same time, he’s daring the courts, and of course the Court, to tell him that some exercise exercises of presidential power go too far. Daring them by casually refusing to obey court orders that interfere with his plans because, of course, what he wants is to make the exercise of presidential power coextensive with his personal will so that he can do anything.
Why does it matter? As Princeton historian Kim Scheppele explained in our Substack Live as part of the Autocracy Series, authoritarian leaders who come to power through democratic means try to keep up the appearance of lawfulness while, in fact, they are using legal mechanisms to dismantle democratic institutions and consolidate their own authority. Kim calls that “Autocratic Legalism”. One reason to keep track of what Trump is doing, even down to the minutiae like individual executive orders, is because it informs us about his true intentions for our democracy. Watch what he does, not what he says.
It’s not just asylum. That’s just one recent example. This is how he operates across the board. It’s the essence of his presidency—not doing away with the law, but cloaking himself in it. It’s why, during the first Trump presidency, we used to say that the emperor had no clothes. It’s time to bring that back.
One implication for those who are concerned that Trump will cancel elections in 2026 is to understand he can’t afford to do so. It would force him to shed the appearance of legitimacy that he’s gone to so much trouble to maintain. He will undoubtedly try to influence the outcome of those elections, but elections are held by the states, not by the centralized federal government, and we will work to do everything we can to protect the elections and make sure that we can all vote. We have that power. He doesn’t. (Pro tip: Start now by avoiding the rush and making sure you have identification that proves who you are and your American citizenship—even if your state doesn’t require this now. If Trump’s executive order on voting holds up in court or the SAVE Act passes, you’ll need it. And while you’re at it, get your friends and neighbors working on theirs, too. I scored a moral victory last month when I convinced my youngest to get a passport, but a Real ID will work too.)
Trump’s autocratic legalism distinguishes his presidency from that of his predecessors. It’s the key to understanding that this is not a normal presidency and that democracy is at risk. It’s not just a legal theory for political scientists. It’s what we saw happen with the asylum issue. We’ve seen it happen before and it will happen again. Don’t hesitate to point it out and discuss it with those around you.
The Judge in the asylum case explained that Trump and his allies claimed that what he did was a necessary step to regain control of an overrun border. In fact, the Judge ruled that he went far beyond what the law allowed. Congress has passed laws that are the sole means for deporting people from this country. The Judge ruled that Trump created “an alternative immigration system” that had no basis in law, in essence, trampling Congress’ powers to make laws. “The Executive Branch, in any event, cannot avoid judicial review by simply declaring that its actions are unreviewable,” he concluded.
A president who believes in his oath doesn’t defy it. The asylum case is a potent example to use with friends who may need convincing as we look ahead to the midterm elections. The right to asylum is an important one. It doesn’t protect criminals, as Trump claims; in fact, applicants have to meet stringent requirements. Asylum is meant to offer protection for people fleeing from persecution—as a nation of immigrants, that resonates with so many family stories as new Americans. The ability to seek asylum is a human right, protected by our laws. By slamming the door shut in their faces, Trump makes a mockery of the promise that brought so many people to this country. If he is permitted to continue, the words on the Statue of Liberty, written by Emma Lazarus in 1883, will be nothing more than mockery. "Give me your tired, your poor, Your huddled masses yearning to breathe free.” The American experience is that so many of those people go on to make incredible contributions to this country, and they love it so deeply. Bring the people around you along on your journey to do whatever it takes to vote in 2026 so we can reinstall guardrails (like a living, breathing Congress) that will protect our democratic institutions. We don’t need a dictator, a king, or an autocrat in this country, whether he dresses himself up in the rule of law, or not. We don’t have to stand for one.
We’re in this together,
Joyce
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