The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Recently, Texas installed a 1,000-foot-long floating buoy system in the Rio Grande. The United States filed suit against Texas. (For those playing at home, the suit was field in Austin, where the Capitol sits, and not in the Rio Grande valley, where the case arose.) DOJ argues that Texas has violated the Rivers and Harbors Act, which prohibits placing certain structures in navigable waters. Texas has now filed its reply. Texas makes several arguments based on the statute:
The segment of the river where the buoy system has been deployed is not navigable; even if it were, the buoy system does not decrease the navigable capacity of the river; and the buoy system is not a boom or other structure prohibited under the Act.
However, Texas also makes an alternative argument based on constitutional avoidance:
Because Texas has a federal constitutional right to defend itself against invasion from even non-state actors, the Court should construe the Rivers and Harbors Act narrowly to avoid a collision between that constitutional right and the federal statute.
The constitutional provision at play here is somewhat obscure. Article I, § 10, cl. 3 provides, "[n]o state shall, without the Consent of Congress, . . . engage in war, unless actually invaded, or in such imminent Danger as will not admit of delay." The Invasion Clause, on its face, seems to give the states additional authorities when they are "actually invaded." Governor Abbott argues that he, as the Commander in Chief of the state, has the power to determine whether there is an invasion. And Abbott has made such a declaration.
The brief provides some history about the Invasion Clause:
Texas's sovereign power is not limited to repelling invasions by state actors. By its terms, Article I, § 10, Clause 3 applies to all types of invasions, including invasions from non-state or quasi-state actors, like the cartels. Indeed, throughout American history, States have had to use military force to respond to hostile non-state actors. For example, James Madison explained at the Virginia Ratifying Convention how state militia were customarily utilized: "There were a number of smugglers, who were too formidable for the civil power to overcome. The military quelled the sailors, who otherwise would have perpetrated their intentions." 11 James Madison, Debate From Virginia Ratifying Convention (June 16, 1788). And in 1792, Congress exercised its power "[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions," U.S. Const. art. I, § 8, by authorizing the President to call forth the militia "whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe." An Act to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions, 1 Stat. 264, 2d Cong., Sess. I, Ch. 28 (1792) (emphasis added). Congress reenacted the same provision in 1795. See An Act to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions; and to repeal the Act now in force for those purposes, 1 Stat. 424, 3d Cong., Sess. II, Ch. 36 (1795) ("imminent danger of invasion from any foreign nation or Indian tribe"). Any notion that "invasion" somehow hinges on the difference between state actors and non-state actors would seem wholly artificial to the Framers: After all, the Constitution gives Congress power to "grant Letters of Marque and Reprisal" authorizing private actors to cross international borders to commit hostile acts. U.S. Const. art. I, § 8, cl. 11.
The brief also cites several founding-era dictionaries to define the word "invade" and "invasion."
Texas argues that the court should avoid any reading of the Rivers and Harbors Act that would run afoul of the Invasion Clause.
In view of this constitutional authority, this Court should construe the Rivers and Harbors Act narrowly to avoid the constitutional questions presented by the interaction between the State's constitutional authority to repel invasions and the Rivers and Harbors Act. See United States v. Hansen, 143 S. Ct. 1932, 1946 & n.3 (2023) (applying constitutional avoidance in immigration context). "Under the doctrine of constitutional avoidance, '[w]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.'" Hersh v. U.S. ex rel. Mukasey, 553 F.3d 743, 753–54 (5th Cir. 2008) (quoting Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (1988)). Here, the State has deployed the buoy system to prevent cartels from trafficking an unprecedented number of aliens, an unknown number of terrorists, and illegal drugs such as fentanyl across the Rio Grande. To prevent a collision between the Rivers and Harbors Act and the State's constitutionally guaranteed right to protect itself, the Court should hold that the terms of the Rivers and Harbors Act do not apply here.
I have not given much thought to the Invasion Clause. Nor have the courts–until now.