The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today, federal district Judge David Alan Ezra issued a preliminary injunction against the state of Texas in United States v. Abbott, a case where the federal government is suing the state of Texas for installing floating buoy barriers in the Rio Grande River, thereby creating a safety hazard and potentially impeding navigation. The Biden Administration claims this violates the Rivers and Harbors Act of 1899. Texas claims it does not, but but also cites one of the "invasion" provisions of the Constitution as justification for the state's actions. Texas relies on Article I, Section 10, Clause 3 of the Constitution, which 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." Texas contends that illegal migration and drug smuggling qualify as "invasion," and therefore the Constitution gives the state the power to take military action in response, even if doing so might violate a federal statute, and even if there is no congressional authorization for war. On this view, the use of the buoys is just a modest war measure!
While I don't have any strong view on the Rivers and Harbors Act aspect of the case, Texas' invasion theory would set a very dangerous precedent if the state were to win on it. The state's interpretation of "invasion" is at odds with the text and original meaning of the Constitution. If accepted by the courts, it would have scary implications, including giving states a blank check to engage in war with neighboring foreign countries (without congressional authorization), and giving the federal government a similar blank check to suspend the writ of habeas corpus.
In today's ruling, Judge Ezra concludes that Texas violated the statute. He also rejects the state's invasion theory, primarily on the ground that the issue of invasion is a "political question":
[T]he political question doctrine bars consideration of Texas's "invasion" defense. Texas argues that it constructed the floating barrier pursuant to the Self-Defense Clause, U.S. Const. art. I, § 10, cl. 3,27 because it is being "invaded" by "[t]housands of aliens . . . including members of cartels," and thus asks the Court to exempt Texas's conduct from the RHA…. To credit Texas's allegation of invasion would be to make a policy decision on a topic the Supreme Court and Fifth Circuit have identified as a nonjusticiable
Several constitutional provisions assign the federal government—not states—the authority to recognize and respond to invasions. See U.S. Const. art. I., § 8, cl. 15 (power to call forth militia); art. I, § 9, cl. 2 (power to suspend habeas corpus); art. IV, § 4 (power to protect against invasion). The Constitution's commitment of the question of an "invasion" is especially strong when it involves "the immigration and the status of aliens," which the Constitution assigns exclusively to Congress. Arizona v. United States, 567 U.S. 387, 394-95 (2012)….
Thus, courts of appeals have uniformly declined to consider whether and when an "invasion" occurs because of illegal immigration, as it "involves matters of foreign policy and defense," which the Constitution specifically commits to the federal government. Padavan v. United States, 82 F.3d 23, 28 (2d Cir. 1996) (finding nonjusticiable plaintiffs' claim that "the federal government violated the Invasion Clause because the influx of legal and illegal aliens into New York State represents an 'invasion,'"); New Jersey, 91 F.3d at 470 (finding nonjusticiable New Jersey's claim of invasion by illegal aliens); Chiles v. United States, 69 F.3d 1094, 1097 (11th Cir. 1995) ("[W]hether the level of illegal immigration is an 'invasion' of Florida and whether this level violates the guarantee of a republican form of government present nonjusticiable political questions."); California v. United States, 104 F.3d 1086, 1091 (9th Cir. 1997) ("There are no manageable standards to ascertain whether or when an influx of illegal immigrants should be said to constitute an invasion."). Likewise, the Fifth Circuit has dismissed as nonjusticiable Texas's previous claim that the United States' alleged "fail[ure] to control illegal immigration" violated the Naturalization Clause…..
If the issue is a political question, that means Texas cannot unilaterally decide for itself when an "invasion" has occurred and thereby seize the power to "engage in war" with Mexico:
Texas hopes to distinguish its case from the resounding rejection of similar "invasion" arguments in the cases cited above by centering the argument on the State's right to "engage in War" when "actually invaded." U.S. Const., art. I, § 10, cl. 3….
[A]ll Texas's new argument does is ask the Court to take the additional step—beyond the nonjusticiable question of whether the federal government has failed to protect Texas from invasion—of sanctioning Texas's assertion of plenary power to declare and respond to "all types of invasions, including invasions from non-state or quasi-state actors." (Dkt. # 26 at 24.) Under this logic, once Texas decides, in its sole discretion, that it has been invaded, it is subject to no oversight of its "chosen means of waging war." (Dkt. # 33 at 7-8.) Such a claim is breathtaking.
While Judge Ezra relies mainly on political questions reasoning, he also emphasizes the structural danger of giving states' unilateral authority to decide when an "invasion" has occurred and thereby claim the power to "engage in war."
I have doubts about the entire "political questions" doctrine, and would have preferred for the court to simply rule that illegal immigration and drug smuggling do not qualify as "invasion." Two of the circuit court decisions cited by Judge Ezra (Padavan v. United States and New Jersey v. United States) did exactly that (in addition to ruling against the states on political questions grounds). But, obviously, I understand that a district judge cannot simply ignore the political questions issue. And if the invasion issue in this case had to be decided on that basis, Judge Ezra's approach is the right way to do it.
This is just a ruling on a preliminary injunction, and not a final ruling on the merits. But the former likely prefigures the judge's ruling on the latter. First, however, Texas is probably going to appeal today's decision to the US Court of Appeals for the Fifth Circuit.
I am guardedly optimistic that Texas will lose there, as well. But we'll have to see what happens.