Today, Lawfare published my article on why Texas gets it wrong in equating illegal immigration and cross-border drug trafficking to “invasion” in two major cases currently pending in federal courts. Some of the points raised in the article are developed in greater detail in an amicus brief I recently filed United States vs. Abbotton behalf of myself and the Cato Institute.
Here is an excerpt from the article:
In two important cases currently before the U.S. Court of Appeals for the Fifth Circuit, the state of Texas has advanced the argument that illegal immigration and drug trafficking qualify as “invasion” by authorizing the state to “ engage in war” in response, pursuant to Article I of the Constitution. So far, federal courts have uniformly rejected such claims. But if they were to accept them, drastic consequences would follow. Border state governments would have the power to attack neighboring countries, even without authorization from Congress. And the federal government would have the power to suspend habeas corpus – thus detaining people without due process – almost any time it wants. In addition to these practical considerations, the argument of “invading” Texas is at odds with the text and original meaning of the Constitution.
In United States vs. Abbott the federal government is suing Texas for installing floating buoy barriers in the Rio Grande to block migration and drug smuggling, thereby creating safety risks and possibly impeding navigation…. The Biden administration claims this violates the Rivers and Harbors Act of 1899, which prohibits “[t]the creation of any obstruction, not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States.” In United States vs. Texas, the state is defending the legality of SB 4, a new state law that criminalizes unauthorized immigration, expands state law enforcement powers to detain undocumented migrants, and gives Texas state courts the authority to order the expulsion of migrants convicted under the law. The federal government argues that SB 4 is preempted by federal law and violates federal immigration authority.
In both cases, Texas argues that the federal government’s interpretation of the statutes in question is wrong. But more importantly, the State also argues that the encroachment clause of Article I of the Constitution gives it the power to install buoys on the river border it shares with Mexico and to enforce SB 4 even though federal statutes prohibit such actions. Article I, paragraph 10, paragraph 3 of the Constitution states that “[n]or the State may, without the consent of Congress, … engage in war, unless actually invaded, or in such imminent danger as to admit of delay.” Texas argues that illegal immigration and trafficking of drugs qualify as an “invasion” and that, therefore, the The Constitution gives the State the power to take military action in response to violations of federal statutes, and even in the absence of congressional authorization for war….
The constitutional text undermines the idea that “invasion” includes illegal immigration and smuggling. The invasion clause that Texas relies on allows states to “engage in war” in response. This suggests that an “invasion” must be the kind of organized assault that would normally justify full-scale war in response, including sending troops to attack and occupy the country from which the invasion originated….
The Guarantee Clause of Article IV of the Constitution states that the federal government shall protect the states “against invasion; and upon request of the Legislature or Executive (when the Legislature cannot be convened) against domestic violence.” Here, invasion is paired with “domestic violence”, which in 18th-century usage refers to revolts against state government, not the modern use of the term to denote violence in family and intimate relationships. According to the long-standing doctrine of It is recognized by partners, “a word may be known by the company it keeps.” In this case, it makes little sense to assume that “invasion” includes nonviolent actions, when it is combined with “domestic violence.”
The original meaning strengthens the text….
In his Report from 1800James Madison, one of the Constitution’s primary framers, responded to claims that the Guarantee Clause authorized the infamous Alien and Sedition Acts of 1798 by pointing out that “[i]Invasion is a war operation,” and thus the clause does not authorize restrictions on immigration. The same logic applies to the use of the term “invasion” in Article I.