The buoy case was resolved en banc last week in the Fifth Circuit. I am pleased to forward this guest post by Professor Robert Netelson, who co-authored an article on state war powers.
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On July 30, the U.S. Court of Appeals for the Fifth Circuit ruled that a district court should not grant the U.S. a preliminary injunction ordering Texas to remove barriers on the Rio Grande. The case was United States v. Abbott, which was a ruling on airworthiness issues. However, the case also has implications for the power of states to wage defensive wars, particularly against illegal immigrants.
Andrew T. Hyman and I recently discussed British American Journal of Legal Studies. We focus primarily on evidence from the founding period demonstrating the original meaning of the Constitution. Our article played a role in the case, but as discussed below, this is a rather unusual case.
Dispute between the parties
Texas has installed a 1,000-foot floating barrier on the Rio Grande River in a busy transit area near Eagle Pass, Texas. The state justifies this barrier by invoking state war powers to prevent “invasion”.
The U.S. government claims that Texas’ authority to respond to the so-called “invasion” has expired. The government also maintains that states’ rights to self-defense are already limited by Congress’s Rivers and Harbors Appropriations Act of 1899, which prohibits obstruction of navigable waterways without federal consent. (The Constitution gives Congress jurisdiction over navigable waterways as part of the commerce power.)
Texas counters that, based on traditional seaworthiness testing, the Rio Grande cannot and has never sailed over Rome, Texas — far downstream of the Eagle Pass floating barrier.
state war powers
The Constitution grants certain enumerated powers to federal officials and entities, as well as to the government itself. It reserves the remainder to the states and the people, as affirmed by the Tenth Amendment. Furthermore, in the absence of an express provision of the exclusive nature of federal power in the Constitution, the states retained concurrent, albeit subordinate, jurisdiction.
One of the concurrent powers retained by the states was the prerogative to wage war. However, Article 1, Section 10(3) significantly limits this privilege:
No state may do so without the consent of Congress. . . Keep troops or warships in peacetime. . . or engage in war, unless there is an actual invasion, or such imminent danger precludes delay.
From an international law perspective, Congress can authorize states to engage in attack war. But states retain unconditional wage power defensive war.
As our research points out, the Article preserved a balance between federal and state wars that was much the same balance that prevailed in the Articles of Confederation.
But only approximately. The Constitution added one more limit and four expansions to the nation’s war powers. Specifically, the Constitution (1) denies the state the power to issue privateering licenses and retaliate—additional restrictions on offensive warfare—but (2) abandons previous restrictions on the state’s ability to wage defensive conflict.
The Constitution also grants the federal government supreme authority to regulate immigration (Article 1, Section 8, Section 10). However, the states also retain subordinate concurrent powers on the subject. This is recognized in Article I, Section 9(1), which refers to free immigrants rather than the importation of slaves: “Immigrants of such persons… as any existing State may think fit to recognize…”.
Mr. Hyman and I examined the meaning of “invasion” and “invasion” during the Founding Era to determine whether these terms were limited to formal attacks by foreign forces, as three U.S. appeals courts have held. We found that they certainly weren’t. Eighteenth-century dictionaries and contemporary usage support a definition broad enough to cover peaceful but unauthorized cross-border incursions that cause damage. For example, in the years before the Constitution, both Benjamin Franklin and Pennsylvania officials referred to waves of peaceful but unauthorized immigrants as “invasions.”
We also learned that during the founding of the country, immigrants who entered a country illegally were viewed or viewed as “foreign enemies.” They are not given the same rights as their “alien friends.” It makes no difference whether the country of origin of illegal immigrants is friendly or hostile.
Finally, we examine international law from the Founding Era to determine what tools sovereign states could use to conduct defensive warfare. Not surprisingly, these include barriers to deter intruders.
Therefore, based on our findings, Texas appears to have a strong constitutional basis when it comes to invoking its defensive war powers to justify building a barrier—at least until one considers the Rivers and Harbors Appropriations Act.
court decision
Under that law, if the Rio Grande was “navigable” at the point where Texas built the barrier, a conflict would arise between Congress’s exercise of its commerce powers and the state’s exercise of its defensive war powers.
In United States v. Abbott , the Court avoided this conflict. In an opinion written by Judge Don R. Willett, the court concluded that the Rio Grande is not navigable in the barrier area because the river above the city of Rome was never a “commercial highway”. Although there was some evidence that a ferry crossed the river near Eagle Pass, Judge Willett concluded that the ferry crossing simply filled a gap in the overland route. The ferry may indicate that the lake is navigable, but “the lake is clearly not a river.”
Chief Judge Priscilla Richman agreed with the ruling but left open the possibility that the ferry route was navigable by sufficient evidence.
Judge Ho’s opinion
Justice James C. Ho wrote a concurring and dissenting opinion on the state’s right of self-defense. He argued that the U.S. government’s request for a preliminary injunction should be dismissed because when a country claims in good faith that it has been invaded and invokes its war powers, the legality of its decision is a non-justiciable political question:
Supreme Court precedent and long-standing executive branch practice confirm that when a president decides to use military force, it is a nonjusticiable political question that is not susceptible to judicial reversal. When a governor rather than a president invokes this power, I see no principled basis for distinction. If anything, a nation’s authority to engage in war “without the consent of Congress” in response to an invasion is textually clearer than that of the president.
However, Judge Ho held that “good faith” decision-making is a prerequisite for non-justiciability. In this and other respects his analysis is similar to ours. We write:
“Insurrection” and “invasion” not only trigger the federal government’s responsibilities [Guarantee] Articles can also trigger the state to exercise its war powers. If these terms are too vague for courts to define for federal purposes, then they are too vague for courts to define for state purposes. if [Guarantee] Clause cases were considered nonjusticiable because the Constitution left the decision of whether and how to protect states against invasion to the political branches of the federal government, and then the Constitution more explicitly committed (as evidenced by the Self-Defense Clause) to determine whether a state had “Intrusion” or “imminent danger” to the state. If remedialability issues pervert the course of justice [Guarantee] Clause cases, they may also impede justiciability when a country enters a state of war and raises an army.
To be clear: If federal officials were sincere in suppressing an insurrection or repelling an invasion, courts should not second-guess their tactics. But judicial intervention is appropriate when federal officials completely neglect their duties or take steps that are so manifestly inadequate as to demonstrate a lack of good faith.
Judge Ho’s concurrence is consistent with our conclusion in another respect: He and we both doubt that federal law can preempt the right of state self-defense even if it clearly violates that right. (“[F]Federal regulations,” he wrote, “often must give way to federal constitutional rights. Important examples include protecting states’ decisions regarding the location of their capitals and protecting state officials from federal “takings.”
Justice Andrew S. Oldham concurred, primarily to dissent Judge Ho’s foray into constitutional issues. Oldham J based his conclusion solely on the finding that it was unnavigable.
dissenter
Justice Stephen A. Higginson argued in his dissent that the federal government should be able to rely on cross-river ferry traffic to prove the river’s navigability.
Justice Dana M. Douglas’s dissent challenged the majority’s evidentiary conclusion on airworthiness, finding that the federal government had presented sufficient evidence that the Rio Grande near Eagle Pass The Rand River is navigable. She also concluded that national war powers would cease once Congress had a chance to respond to the invasion:
Article 3 states that war can be waged without the consent of Congress only if a country is “actually invaded, or is in imminent danger without delay.” . . . See, e.g., Articles of Confederation, 1781, Article 1. Sixth, paragraph 1. 5 (limits a nation’s power to engage in war “until consultation with the Congress of the United States can be obtained”); Robert G. Netelson and Andrew T. Heyman, The Constitution, Invasion, Immigration, and the War Powers of States, 13 British. J. Am. Law Stud. 1, 17 (2024) (noting that with regard to state war powers, the Constitution achieves “a balance between federal and state prerogatives roughly similar to the balance in the Articles of Confederation”). . . .
In other words, because the scope of the nation’s war power under the Constitution is roughly equal to that provided by the Articles, and because the Articles require congressional consultation and/or consent, the Nation’s war power under the Constitution is similarly limited.
Unfortunately, the publication she relies on (our publication) directly contradicts her conclusion. We wrote that under the Articles of Confederation, states “retained virtually unlimited flexibility to engage in defensive land warfare—even after consultation with Congress—in addition to the authority to conduct preemptive strikes against non-Indian enemies.”
More importantly, we find that the Constitution removed the clause’s restrictions on national defense wars:
[O]On land, the Constitution retains the state’s general control over its militia while providing that “no nation shall… without the consent of Congress…retain troops…in time of peace…or engage in war, except when actually invaded” or faced with Imminent danger cannot be delayed. This restriction ignores the clause’s accompanying requirement to consult with Congress. (Italics added.)
We have written to Judge Douglas to inform her of this discrepancy.
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Rob Nettleson is a senior fellow in constitutional law at the Independent Institute in Denver and a former professor of constitutional law at the University of Montana. He is the author of The Original Constitution: Its Practical Meaning and Meaning (3rd ed., 2015).
