Federal Court Again Rules Against Texas' Claim that Illegal Migration Qualifies as "Invasion"

On Friday, federal District court Judge David Alan Ezra once again rejected Texas’s argument that illegal migration qualifies as an “invasion” authorizing the state to “engage in war” response, under Article I, § 10, Clause 3 of the Constitution, which states that “No State shall, without the Consent of Congress … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

This ruling is the latest phase of the ongoing litigation in United States v. Abbott over the legality of Texas’s actions in placing water buoys to block a part of the Rio Grande River. The federal government claims this violates the Rivers and Harbors Act of 1899. Texas claims it does not, but but also argues that the Invasion Clause  gives the state the power to install the buoys even if it would otherwise violate federal law, due to the fact that illegal migration and drug smuggling qualify as invasion.

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

Judge Ezra’s latest decision rejects Texas’s motion to dismiss the River and Harbors Act claim, but does side 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, which is beyond
“invasion” as described in the Constitution…. And even if this were an
invasion as understood by the Founding Fathers, the federal government is already
present and actively managing immigration at the border…

When the Constitution was enacted, the Founding Fathers conceptualized  invasions as a part of war, not an “invasion” or “disaster” created by immigrants entering the United States. The text, structure, and original understanding of the Constitution makes it clear that immigration does not constitute an invasion….

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

However the en banc Fifth Circuit may well further consider the meaning of “invasion” in United States v. Abbott. That issue is extremely important for reasons that go far beyond the specifics of the water buoy and SB 4 cases.

Among other things, if Texas prevails on the invasion question, border states would have broad power to start wars with neighboring countries, and the federal government could suspend the write of habeas corpus (and thereby detain people without filing charges) virtually anytime it wants. I cover these and other flaws in Texas’ invasion theory in greater detail in an article in Lawfare, and in an amicus brief I filed in US v. Abbott, before the en banc Fifth Circuit, on behalf of myself and the Cato Institute.

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