The Volokh Conspiracy
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Texas Gov. Greg Abbott Doubles Down On Dangerous Claim that Immigration is "Invasion"
The argument is badly wrong, and would set a dangerous precedent if ever accepted by courts.
In response to a recent Supreme Court ruling allowing federal law enforcement officials to cut through razor wire Texas placed at parts of its southern border, Texas Gov. Greg Abbott issued a statement doubling down on claims that undocumented migration qualifies as an "invasion" empowering Texas to ignore federal laws to the contrary:
Under President Biden's lawless border policies, more than 6 million illegal immigrants have crossed our southern border in just 3 years. That is more than the population of 33 different States in this country. This illegal refusal to protect the States has inflicted unprecedented harm on the People all across the United States.
James Madison, Alexander Hamilton, and the other visionaries who wrote the U.S. Constitution foresaw that States should not be left to the mercy of a lawless president who does nothing to stop external threats like cartels smuggling millions of illegal immigrants across the border. That is why the Framers included both Article IV, § 4, which promises that the federal government "shall protect each [State] against invasion," and Article I, § 10, Clause 3, which acknowledges "the States' sovereign interest in protecting their borders." Arizona v. United States, 567 U.S. 387, 419 (2012) (Scalia, J., dissenting).
The failure of the Biden Administration to fulfill the duties imposed by Article IV, § 4 has triggered Article I, § 10, Clause 3, which reserves to this State the right of self-defense. For these reasons, I have already declared an invasion under Article I, § 10, Clause 3 to invoke Texas's constitutional authority to defend and protect itself. That authority is the supreme law of the land and supersedes any federal statutes to the contrary.
The argument that immigration is "invasion" is badly wrong and has dangerous implications that go far beyond the specific details of the razor wire case.
Texas previously made the same argument in a case where the federal government argued the state illegally placed water buoys in the Rio Grande River in violation of federal statutes. Texas' position was rejected by the trial court and the US Court of Appeals for the Fifth Circuit, but the case is now under review by the en banc Fifth Circuit.
Abbott and his lawyers would do well to stop citing James Madison to buttress their invasion argument. As I explained in a previous piece on this issue, Madison specifically rejected the idea that immigration qualifies as invasion:
Those who cite Madison in support of equating immigration and invasion ignore the one time he directly addressed this very question: the Report of 1800, which rebutted claims that the Alien Friends Act of 1798 (which gave the president broad power to expel non-citizens) was authorized by the Invasion Clause. There, Madison explicitly rejected the idea that immigration qualifies as invasion, emphasizing that "Invasion is an operation of war."
Claims that other statements by Madison support the theory do not withstand scrutiny for reasons I summarized here.
If courts were to endorse the idea that illegal immigration qualifies as "invasion," it would have absurd and dangerous implications. Here's my brief summary of a key reason why:
[I]f illegal immigration or drug smuggling really do qualify as an "invasion," then [Article I, § 10, Clause 3 of] the Constitution [the provision cited by Abbott] authorizes states to "engage in War" as a response. In other words, Texas would be authorized to take such actions as sending its National Guard to invade Mexico, in order to attack drug cartels or forestall undocumented migration…. This absurd—and dangerous—implication of Texas's argument is an additional reason to reject it.
And Texas could then "engage in war" without any congressional authorization, and - if Abbott is right - in defiance of federal statutes to the contrary.
In the water buoy case, federal district Judge David Alan Ezra (a Republican Reagan appointee) described Texas's position as a "breathtaking" assertion of unilateral state power. If anything, he understates the point.
I would add that Texas and other states could use that claimed authority anytime they want. Since the US began to enact severe restrictions on migration across the southern border, there has never been a time when there wasn't large-scale undocumented migration across it. No president - Donald Trump included - has ever even come close to stopping it. Large-scale illegal migration is a natural consequence of the combination of severe restrictions on legal migration, job opportunities in the US, and terrible conditions in the countries most migrants are fleeing. It can potentially be reduced by making legal migration easier. But Abbott and most other Republicans are opposed to that.
Much the same point applies to cross-border drug smuggling, which is a natural consequence of the War on Drugs. Since that ill-advised metaphorical war began, there has never not been extensive cross-border trafficking in illegal drugs - including under Trump.
If illegal migration and drug smuggling count as "invasion," we are always in a state of "invasion" and affected states can "engage in war" anytime they want. Even if there is relatively more illegal migration now than a few years ago, there have long been hundreds of thousands of cases per year. If illegal migration qualifies as an "invasion" at all, it does so all the time, not just when a Democratic president is in office or when there is a spike compared to previous years.
Texas' reasoning also implies that the federal government can always suspend the writ of habeas corpus and detain both migrants and US citizens without charges:
The writ of habeas corpus protects people from being detained by the government without trial. If federal or state officials detain you, the writ gives you the right to challenge the legal basis for that detention in court. But the Suspension Clause of the Constitution (Article I, Section 9, Clause 2) states that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it" (emphasis added).
If illegal migration and drug smuggling qualify as "invasion" for purposes of triggering state and federal authority to resist invasion under the invasion clauses, they surely also qualify as such under the Suspension Clause. And there is a significant amount of illegal migration and smuggling of contraband goods going on at virtually all times in modern history. Thus, presto! The federal government can suspend the writ of habeas corpus virtually any time it wants!
Do Gov. Abbott and other Republicans want Joe Biden to be able to claim the power to detain people without charges anytime he wants? That's where their logic leads! I expand on this point in greater detail here.
If the framers and ratifiers of the Constitution had expected the invasion provisions of the Constitution to have such radical implications, one would expect them to note it at some point during prolonged debate over ratification. But there is no evidence that they did. The habeas corpus issue, in particular, is one that would have raised hackles in the Founding era, as British abuses of habeas corpus were a major grievance during the American Revolution.
Legal issues aside, the drumbeat of rhetoric equating drug smuggling and immigration and invasion has dangerous policy implications. An invasion is the kind of thing to which governments usually respond with overwhelming force. The more people think immigration and drug smuggling are equivalent to an invasion, the greater the likelihood there will be political pressure for such draconian measures as killing migrants, family separation (which Trump may seek to revive if he returns to power), and the idea of turning the War on Drugs into a real war by invading Mexico (a dangerous proposal increasingly popular in GOP circles). At the very least, "invasion" rhetoric moves the Overton Window on such ideas in the wrong direction.
For the moment, Abbott's invasion statement is likely to have only very limited effect. The Supreme Court ruling merely lifts the lower court injunction barring federal officials from cutting the razor wire installed by Texas. It does not actually order Texas itself to do anything, or even to refrain from installing additional wire. Thus, were are left with a weird situation where the feds can cut the wire, Texas can install more, the feds can cut it again, and so on. That may continue unless and until the courts resolve the case more fully.
But Texas's invasion arguments have dangerous implications for both legal and political reasons. Courts would do well to continue to reject them.
