This morning, as Orin Kerr notes, Federal District Court Judge David Alan Ezra issued a decision finding, among other things, that illegal immigration does not qualify as an “invasion” under the Constitution. Article I, § 10, Clause 3 of the Constitution states that “No State shall, without the consent of Congress… engage in war, unless actually invaded, or in danger so imminent as to admit of delay “. Texas argues that illegal immigration and illegal cross-border drug trafficking qualify as an invasion under this clause, and therefore authorize Texas to “engage in a war” in response, including taking measures that would otherwise prohibited by federal statute.
In this case, Texas is defending the legality of SB 4, a new state law that criminalizes unauthorized immigration and gives Texas state courts the authority to order the deportation of migrants convicted under the law. If the Texas invasion argument fails, SB 4 could be struck down by federal law.
Judge Ezra’s ruling is far from the first court decision to conclude that illegal immigration is not an invasion. There have been several previous similar cases, including three appellate court decisions and Judge Ezra’s recent ruling United States vs. Abbott, a case in which the federal government sued Texas for installing floating buoy barriers in the Rio Grande River in violation of the Federal Rivers and Harbors Act of 1899 (that decision was upheld by the U.S. Court of Appeals for the Fifth Circuit, but the case is now under review by the Fifth Circuit en banc.
But today’s opinion constitutes by far the most in-depth legal analysis on this important issue. Judge Ezra outlines extensive evidence indicating that the text and original meaning of the Constitution indicates that only an armed attack qualifies as an “invasion”:
In the end, all the tools of constitutional construction clashed with the Texas position. Contemporary definitions of “invasion” and “actually invaded”, as well as the common use of the term in the late 18th century, predominantly referred to an “invasion” as a hostile, organized military force, too powerful to be met by prosecution ordinary judiciary. This Court has failed to identify a single contemporary use of the term to refer to waves of unauthorized foreign immigration. The text and structure of the state war clause implied that the term “invasion” was to be used sparingly for temporary, urgent, and dangerous circumstances. Simply put, the overwhelming textual and historical evidence does not support Texas’ understanding of the state war clause.
As James Madison said in his Report from 1800, “Invasion is a war operation.” Judge Ezra extensively analyzes ratification debates and other Foundation-era evidence. He also points out the radical implications of Texas’ position, which would effectively allow states to usurp the federal government’s war powers “whenever they disagreed with federal immigration policy.” If correct, Texas and other states could “engage in war” against their neighbors whenever significant illegal migration occurred, which has happened almost every time since the U.S. government mandated first time significant immigration restrictions applied to migrants crossing the border. the southern border. Therefore, Texas would be free, for example, to use the state National Guard to attack Mexico in order to prevent illegal immigration and drug trafficking from there.
Judge Ezra’s ruling is also the first to highlight the dire implications of the immigration-invasion equation for the writ of habeas corpus:
Article 1, Section 9 mentions “invasion” to note that “the privilege of the writ of Habeas Corpus shall not be suspended, unless in cases of rebellion or invasion the public safety requires it.” Art id. 1, § 9, cl. 2. The suspension of habeas corpus is an extraordinary exercise of power. The writ of Habeas Corpus has only been suspended four times in the history of this country: the Civil War,…..KKK uprisings during Reconstruction, a guerrilla war in the Philippines and Hawaii during World War II…. These examples show that the writ of Habeas Corpus was suspended only in the face of imminent and overwhelming violent threats directed at the stability of the state or federal government….
Unauthorized immigration is not comparable to an armed and organized insurrection against the government. Even as Texas highlights cartel violence, it cannot argue in good faith that the cartels will imminently overthrow the state government. Nor can the mere presence of persistent organized crime, which has long existed in the United States, be sufficient to justify the suspension of habeas corpus. Despite the serious threat to public safety that cartels may pose, it is difficult to accept that the threat is serious enough to justify the total suspension of Due Process rights in Texas.
Indeed, the British suspension of habeas corpus was a major concern among American revolutionaries and carefully limited by the Framers of the Constitution…. For this reason, the Authors drafted the Constitution in such a way that the mandate could be suspended only in times of great emergency….
It is implausible that the Framers, so aware of the act’s past abuses and so careful to protect themselves from future abuses, would have granted states unquestioned authority to suspend the act on the basis of the presence of undocumented immigrants.
I’ve highlighted this issue myself before: If cartel immigration or drug smuggling qualifies as an “invasion,” the writ of habeas corpus could be suspended at virtually any time, since such activity is practically always ongoing (at least since the institution of serious migratory measures). restrictions and the war on drugs).
Judge Ezra further argues that if illegal immigration qualifies as an “invasion,” states’ efforts to “engage in war” in response would still be subject to federal restrictions, under Congress’s war powers, once federal forces will be able to reach the scene of the attack. the attack. I am less sure of the correctness of this statement than I am of his arguments. If a state were indeed “effectively invaded,” it seems to me that it would have at least substantial authority to “engage in a war” that the federal government cannot ignore, even if federal troops are also helping to repel the invasion.
There is more to Judge Ezra’s analysis of the invasion issue. Anyone interested in this important constitutional question should read the entire section of his thoughtful opinion devoted to this question (pp. 65-98). It’s a real tour de force. For those who care, Judge Ezra is a Republican Reagan appointee.
Texas Governor Greg Abbott has indicated he plans to appeal the decision. And the invasion question may soon be considered by the Fifth Circuit en banc as well. We probably haven’t heard the last of this problem. But hopefully the appellate courts will reach the same conclusion as Judge Ezra.
Today’s ruling also includes analysis of other issues in the SB 4 case, particularly arguments over whether the law is preempted by federal immigration statutes (Judge Ezra concludes that it is).
I’ve written before about why illegal immigration doesn’t qualify as an “invasion” here , here , here , and here .