Federal court rules again against Texas’ claim that illegal migration qualifies as ‘invasion’

Immigration

The ruling builds on two previous rulings by the same court with the same effect.

Ilya Somin

|The Volokh Conspiracy

|
4/28/2024 6:09 PM

On Friday, federal court Judge David Alan Ezra again rejected Texas’ argument that illegal migration qualifies as an “invasion” that authorizes the state to “wage war,” under Article I, § 10, Clause 3 of the Constitution, stating that “no State, without the Consent of Congress…shall make war, unless actually invaded, or in such imminent danger as will admit of no delay.”

This ruling is the final phase of the ongoing lawsuit United States v. Abbott on the legality of Texas’ actions in placing water buoys to block part of the Rio Grande River. The federal government claims this violates the Rivers and Harbors Act of 1899. Texas claims this is not the case, but also argues that the Invasion Clause gives the state the power to install the buoys even if they would otherwise would violate federal law. that illegal migration and drug smuggling can be classified as invasion.

Judge Ezra previously rejected this invasion theory in a September ruling, in which he issued a preliminary injunction against the state. That decision was upheld by a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, but is currently under review by the full Fifth Circuit. In the meantime, however, the en banc Fifth Circuit allowed the trial to proceed in court, which is how we arrived at Friday’s ruling.

Judge Ezra’s latest decision denies Texas’ motion to dismiss the River and Harbors Act claim, but sides with Texas on the issue of dismissing an additional claim that the placement of the buoys violates the 1848 Treaty of Guadalupe Hidalgo (which ended the Mexican War). As part of the former ruling, Judge Ezra again rejects the “invasion” theory:

Texas now wants to respond to immigration as a military threat that goes beyond that
“invasion” as described in the constitution…. And even if this one
invasion as understood by the Founding Fathers, the federal government is already underway
present and actively manage immigration at the border…

When the Constitution was adopted, the Founding Fathers conceptualized invasions as part of war, and not as an “invasion” or “disaster” caused by immigrants entering the United States. The text, structure, and original interpretation of the Constitution make it clear that immigration is not an invasion.

Judge Ezra’s reasoning here is largely consistent with that of his preliminary injunction in September, and his even more thorough analysis in his February 2024 ruling in a case in which the federal government is challenging the legality of the Texas SB 4 immigration law, which gives state officials a broad authority to detain and deport undocumented immigrants. A Fifth Circuit panel recently reached the same conclusion in the SB 4 case.

But the En Banc Fifth Circuit might consider the meaning of “invasion” further United States v. Abbott. This issue is extremely important for reasons that go well beyond the specifics of the water buoy and SB 4 cases.

If Texas gains the upper hand in the invasion, the border states would, among other things, have broad power to start wars with neighboring states, and the federal government could suspend the writ of habeas corpus (thereby detaining people without charge) to serve) at almost any time. I discuss these and other flaws in the Texas invasion theory in more detail in an article in Lawand in an amicus brief I filed US v. Abbottbefore the en banc Fifth Circuit, on behalf of myself and the Cato Institute.

ImmigrationBorder ZoneTexasWar