Yesterday, at United States v. Abbott, the 5th U.S. Circuit Court of Appeals unanimously ruled in favor of Texas in a lawsuit that the federal government sued the state for installing a floating buoy barrier on the Rio Grande River to deter immigration and drug smuggling, creating a safety hazard and potentially impeding navigation. The Biden administration claims this violates the Rivers and Harbors Act of 1899.
Texas argued that the federal government misinterpreted the statute, but also claimed that one of the Constitution’s “trespass” clauses gave it the authority to install the buoys even though federal law prohibited it. Article 1, Section 10, Section 3 of the Constitution provides: “[n]o A state cannot . . . without the consent of Congress. . Texas claims illegal immigration and drug smuggling constitute an “invasion,” giving the state the constitutional power to take military action in defiance of U.S. law.
The en banc 5th Circuit voted 11-7, largely along ideological lines (conservative judges held the majority), to overturn the appellate panel and trial court rulings in favor of the federal government.
The majority decision was based on statutory arguments, concluding that the relevant section of the Rio Grande was not covered by the Rivers and Ports Act because it was not “navigable.” I think there are some good arguments on both sides on this issue, and I’ll leave that to analysts with more interest and expertise. Notably, the majority did not discuss Texas’ “invasion” argument and therefore did not overturn the panel’s and trial court’s rulings against Texas on that issue.
Texas has also raised an “intrusion” argument in a separate case involving the legality of the state’s SB 4 law, which gives law enforcement broad powers to detain and deport undocumented immigrants. So far, both the district court and a 5th Circuit panel have ruled against the state on this point.
in the most recent Laufar In my articles and amicus briefs in this case, I explained why illegal immigration and drug smuggling are not “invasions” under the text and original meaning of the Constitution. An “invasion” is an organized armed attack. Furthermore, I outline the dangerous implications of the Texas argument. If the court accepts it, it would give states nearly unlimited power to wage war without congressional authorization and give the federal government a similar blank check to suspend habeas corpus (thus allowing it to suspend habeas corpus without charge). detain persons, including U.S. citizens).
In the unanimous opinion of the full court, prominent conservative Justice James Ho argued that the court should address the intrusion argument. He argued that the meaning of “invasion” was a “political question” that the judiciary had no jurisdiction to resolve. Other courts that have ruled that invasion is a political issue have simultaneously concluded that the issue is for the federal government to handle (while, in some cases, concurring that illegal immigrants do not qualify as invasion). However, Judge Ho argued that the court must respect the Texas governor’s claims about the invasion, at least as long as the governor acted “in good faith.”
This theory has extremely terrifying implications. This means that a governor can declare an invasion at almost any time and then “engage in war” in response—even without congressional authorization. Furthermore, Mr Ho believes that even if the federal government is given time to consider the situation, the governor can continue military action indefinitely and oppose the state’s actions.
“Goodwill” restrictions are not too big of a restriction. Political parties can convince themselves that almost all interactions with foreigners they consider threatening constitute an “invasion.” If illegal immigration and drug smuggling qualify, why not economic competition (many “national conservatives” view imports as a national security threat)? Why not so-called harmful cross-border cultural influences (dangerous foreign ideas and art forms are “invading” the minds of our people!)? And this list can be easily expanded.
If this conclusion is required by the text and original intention of the Constitution, perhaps there is no alternative. but it is not the truth. As explained in my article and amicus brief, the overwhelming historical and textual evidence shows that only an organized armed attack qualifies as an “invasion.” Invasion was, as James Madison said, “an act of war.” There is also no evidence in any original sense that the court must defer to the state on this issue.
The “political question” principle is a judicial invention rather than something embedded in the text and original meaning itself. I doubt that this doctrine makes sense. Even if it should be used in certain circumstances, there is no reason to think that the meaning of “intrusion” is an issue that the courts cannot or should not resolve. The meaning of this term is at least as clear as the meaning of many other terms in the Constitution as generally interpreted by the courts. At the very least, the political question doctrine should not be construed as forcing a country to go to war with the absurd consequences of almost any time, since there will in fact always be large amounts of illegal immigration and cross-border smuggling, at least as long as we have drug prohibition and strict immigration restrictions.
Judge Ho also believed that the actions of NGOs could constitute “invasion.” This may be true in some circumstances, such as attacks by insurgents or terrorist groups. This does not mean illegal immigration, drug smuggling or other ordinary criminal activities qualify.
Furthermore, much of the evidence he cites relates to a situation in the 1870s when the governor of Texas used the state militia to combat large-scale cross-border banditry from Mexico. This event, occurring nearly a century after the Invasion Articles, sheds little light on the text and original meaning. In a recent opinion, Supreme Court Justice Amy Coney Barrett rightly warned against relying on “[h]History (or tradition) long after ratification.
Furthermore, the history of the 1870s does not really support Judge Ho’s position. In an 1874 letter to the Attorney General (which Judge Ho reprinted in the opinion appendix), Texas Governor Richard Coke argued that Mexican bandits had exceeded into the realm of ordinary crime and “is waging war on the people of Texas and their property.” He also emphasized that the Texas army “had no right to cross the river for revenge purposes, nor to wage war against Mexican territory or any Mexican people, but could only pursue the looters who left Texas and wrest from their hands Take away their property”. Bring back property they own in Texas. ” This is not enough to claim the right to “participate in war.” Perhaps most importantly, the governor acknowledged that “U.S. government officials … have the authority to prevent … enforcement” of his order for Texas troops and that he would withdraw the order if the federal government requested it. This is a far cry from the virtually unlimited authority Governor Abbott claims today to declare an “invasion” and fight war in response.
Justice Dana Douglas’s dissent raised additional criticism of Ho Chi Minh’s views on the “invasion” issue. I disagree with all of her arguments. But she rightly pointed out that Texas’ position “would enable Governor Abbott to permanently engage in acts of war.”
In a unanimous opinion, Justice Andrew Oldham (another prominent conservative jurist) held that Justice Ho was wrong to believe that a majority opinion was needed to resolve the intrusion issue. I think Oldham J is probably right about this issue but will leave it to commentators with greater expertise in civil litigation.
Yesterday’s ruling is not the final resolution to the buoy case. Technically, it only lifted the district court’s preliminary injunction against the buoys. However, the majority’s analysis made clear that the trial court must resolve the case in favor of Texas on the “navigability” issue. If so, the intrusion issue does not need to be addressed because a full majority says it does not.
However, the invasion argument remains alive in the SB 4 case, and Texas — and perhaps other states — may continue to do so in the future. As long as they persist in doing so, I will continue to explain why this argument is a dangerous mistake.
Update: In the original version of this article, I noted that the en banc 5th Circuit vote was 11-6, not the correct number of 11-7. I apologize for the error, which has now been corrected.
