In their amicus brief, the Cato Institute and Professor Ilya Somin take no position on the statutory issues, but urge the U.S. Court of Appeals for the Fifth Circuit to reject Texas’ dangerous encroachment clause argument. It conflicts with the text and original meaning of the encroachment clause and would have extraordinarily dangerous implications if accepted by the federal courts.
Part I of the brief explains why Texas’ interpretation of the encroachment clause is manifestly wrong with respect to the original text and meaning of the clause. As James Madison pointed out in his Report from 1800, “Invasion is a war operation.” The term does not include illegal immigration or drug trafficking.
Part II outlines the dire implications of Texas’ arguments. State governments would have the power to declare war in response to illegal immigration and migrant smuggling, even if such war were not authorized by Congress. This would represent a serious weakening of Congress’ exclusive power to declare war and would threaten to embroil the United States in a war at the behest of a single state government. The state’s position would also effectively give the federal government the power to suspend the writ of habeas corpus at any time, since the Constitution gives the federal government the authority to do so “in cases of rebellion or Invasion public safety may require it.” Since a significant amount of illegal immigration and cross-border trafficking occurs at virtually all times, this would give the federal government the power to suspend the writ whenever it wishes. When the writ of habeas corpus If the measure is suspended, the government can arrest and detain people without trial or filing charges, a power that would apply to American citizens and permanent residents, not just migrants who have recently crossed the border.
Finally, Part III illustrates how three circuit court rulings have established that “invasion” does not include illegal immigration and is limited to military attack. If the Fifth Circuit ruled the other way, it would create a circuit split, an unfavorable result from Fifth Circuit precedent.