The Volokh Conspiracy
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More on Why Immigration is not "Invasion"
Legal scholars Frank Bowman and Steve Vladeck weigh in on Texas's dangerous argument.
I have previously criticized Texas's badly flawed argument that illegal immigration and cross-border drug smuggling qualify as an "invasion," thereby triggering the state's constitutional authority to "engage in war" in response (see also here). Prominent legal scholars Frank Bowman (Univ. of Missouri) and Steve Vladeck (Univ. of Texas) have recently posted articles on the same topic, at Just Security and Lawfare, respectively.
Bowman offers a detailed originalist critique of the invasion argument, surveying a number of relevant founding-era sources:
Throughout the Constitutional Convention and the state ratification debates that followed, delegates and commentators used the term "invasion" over and over. With a handful of exceptions where "invasion" is used metaphorically, as when referring to an "invasion of rights," the word invariably refers to a hostile armed incursion into or against the territory of the states or the nation, an incursion that must be met with a military response….
Section 10 of Article I reserves to the national government exclusively the conduct of foreign policy. It also prohibits states from maintaining regular armies and navies in time of peace, and absolutely bars them from "engag[ing] in War, unless actually invaded, or in such imminent danger as will not admit of delay."
In other words, the constitutional response to "invasion" is "war." Section 10, when read together with the provision of Article I, Section 8, that grants Congress the power "to declare war," confers the responsibility for national defense – for making war – on the national government. The Constitution leaves only one narrow exception for emergencies in which states can "engage in War" if they are "actually invaded" or under imminent threat of invasion or a "Danger" so great that it would merit war in response….
At no point in the Constitutional Convention or any of the state ratification debates does anyone, except when speaking metaphorically, employ "invasion" to describe a non-violent, non-military event…..
More to the present point, absolutely no one at the Constitutional Convention or the state ratification debates used the word to connote the peaceful movement of immigrants (lawful or otherwise) from one country to another.
I discussed the original meaning of "invasion" here, highlighting (among other things) James Madison's unequivocal statement that "Invasion is an operation of war."
Vladeck recognizes (correctly, I think), that an attack by nonstate actors could qualify as an invasion, but notes that does not mean illegal migration does:
In a recent case involving a dispute with the federal government over Texas's placement of movable buoys in the Rio Grande, Texas has claimed that "invasions" can come from non-state actors—and that what's happening in Texas right now is an invasion.
The argument that non-state actors can "invade" states is certainly a reasonable one—especially in light of the historical and contemporary examples of the United States engaging in armed conflict with entities other than the militaries of foreign states. But that's about as far as Texas's argument makes sense. Indeed, three different courts of appeals have already rejected arguments that an uptick in unauthorized border crossings by migrants could qualify as an "invasion" for constitutional purposes.
In Padavan v. United States, for instance, the U.S. Court of Appeals for the Second Circuit rejected a claim by New York state elected officials that federal immigration policies vis-à-vis undocumented immigrants were facilitating an "invasion": "In order for a state to be afforded the protections of the Invasion Clause, it must be exposed to armed hostility from another political entity, such as another state or foreign country that is intending to overthrow the state's government." The Third Circuit followed suit three months later in New Jersey v. United States, dismissing New Jersey's argument because "[i]t offers no support whatsoever for application of the Invasion Clause to this case or for its reading of the term 'invasion' to mean anything other than a military invasion." (And the Ninth Circuit echoed both in a subsequent ruling.) As these cases make clear, however far the term "invasion" might be stretched, extending them to unauthorized border crossings by unarmed migrants just doesn't come close. Nor should it. Recall that the purpose of the Invasion Clause is to permit a state to engage in war against those invading it. The idea that Texas could "engage" in a "war" against such (mostly unarmed) foreign nationals is little more than a rhetorical flourish….
Both Bowman and Vladeck make many good points. Both articles reading for anyone interested in this issue!
I don't fully agree with all of their arguments. Most notably, I am not sure I am convinced by Vladeck's claim that a federal statute could override a state's right to engage in war even in a situation where the state really is facing an invasion. But that issue does not arise in a situation where supposed invasion is really just some combination of illegal migration and smuggling.
Whatever the right policy response to these challenges (I think it's to make legal migration easier and to end the War on Drugs), their existence doesn't authorize a state to wage war, or the federal government to suspend the writ of habeas corpus. Under the Constitution, both of these extreme measures would be permissible if there really was an invasion.
