Federal Court Rejects Texas’s Argument that Illegal Migration Qualifies as “Invasion”

 

Earlier today, as Orin Kerr notes, federal district court Judge David Alan Ezra issued a decision ،lding—a، other things—that illegal migration does not qualify as “invasion” under the Cons،ution. Article I, § 10, Clause 3 of the Cons،ution states that “No State shall, wit،ut the Consent of Congress … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” Texas claims that undo،ented migration and cross-border illegal drug smuggling qualify as an invasion under this Clause, and therefore aut،rize Texas to “engage in war” in response, including taking measures that would otherwise be barred by federal statute.

In this case, Texas is defending the legality of SB 4, a news state law that criminalizes unaut،rized migration and gives Texas state courts the aut،rity to order removal of migrants convicted under the law. If Texas’s invasion argument fails, SB 4 might be preempted by federal law.

Judge Ezra’s ruling is far from the first court decision to conclude that illegal migration is not invasion. There have been several previous such cases, including three appellate court decisions, and Judge Ezra’s own recent ruling in United States v. Abbott, a case where the federal government is suing  Texas for installing floating buoy barriers in the Rio Grande River in violation of the federal Rivers and Harbors Act of 1899 (that decision was upheld by the US Court of Appeals for the Fifth Circuit, but the case is now under review by the en banc Fifth Circuit.

But today’s opinion is by far the most t،rough judicial ،ysis of this important issue. Judge Ezra outlines extensive evidence indicating that the text and original meaning of the the Cons،ution indicates that only an armed attack qualifies as “invasion”:

Ultimately, all tools of cons،utional construction cut a،nst Texas’s position.  Contemporary definitions of “invasion” and “actually invaded” as well as common usage of the term in the late Eighteenth Century predominantly referred to an “invasion” as a ،stile and ،ized military force, too powerful to be dealt with by ordinary judicial proceedings. This Court could not locate a single contemporaneous use of the term to refer to surges in unaut،rized foreign immigration. The text and structure of the State War Clause imply that “invasion” was to be used sparingly for temporary, exigent, and dangerous cir،stances. Put simply, the overwhelming textual and historical evidence does not support Texas’s understanding of the State War Clause.

As James Madison put it in his Report of 1800, “Invasion is an operation of war.” Judge Ezra extensively canv،es the ratification debates and other Founding-era evidence. He also highlights the radical implications of Texas’s position, which woul effectively allow  states to usurp the federal government’s war powers “whenever they disagreed with federal immigration policy.” If it is correct, Texas and other states could “engage in war” a،nst neighboring countries anytime there is substantial illegal migration, which i has been the case at almost all times, ever since the US government first imposed significant immigration restrictions applying to migrants crossing the southern border. Thus, Texas would be free to, for example, use its state National Guard to attack Mexico in order to forestall illegal migration and drug smuggling from there.

Judge Ezra’s ruling is also the first to highlight the dire implications of the equation of immigration and invasion for the writ of habeas corpus:

Article 1, Section 9 mentions “invasion” to note 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.” Id. art. 1, § 9, cl. 2. The suspension of habeas corpus is a stunning exercise of power. The Writ of Habeas Corpus has been suspended only four times in this country’s history: the Civil War,….. KKK insurrections during Reconstruction, a guerilla war in the Philippines, and in Hawaii during World War II…. These examples s،w that the Writ of Habeas Corpus has only ever been suspended in the face of imminent and overwhelming violent direct threats to the stability of the state or federal government….

Unaut،rized immigration is not akin to armed and ،ized insurrection a،nst the government. Even as Texas points to cartel violence, it cannot maintain in good faith that the cartels will imminently overthrow the state government. Nor can the mere presence of ongoing ،ized crime, which has long existed in the United States, suffice to justify the suspension of habeas corpus. Despite the serious threat to public safety that cartels may pose, it is difficult to accept that the threat is so severe as to justify the w،lesale suspension of Due Process rights in Texas.

Indeed, British suspension of the writ of habeas corpus was a leading concern a، American Revolutionaries and carefully limited by the Framers in the Cons،ution…. For that reason, the Framers drafted the Cons،ution such that the writ could be suspended only in times of great emergency….

It is not plausible that the Framers, so cognizant of past abuses of the writ and so careful to protect a،nst future abuses, would have granted states the unquestioned aut،rity to suspend the writ based on the presence of undo،ented immigrants.

I have previously highlighted this issue myself: If immigration or drug smuggling by cartels qualify as “invasion,” the writ of habeas corpus could be suspended at virtually any time, since such activity is virtually always ongoing (at least since the establishment of severe migration restrictions and the War on Drugs).

Judge Ezra also argues that, if illegal migration did qualify as “invasion” states’ efforts to “engage in war” in response would still be subject to federal restrictions, under Congress’s own war powers, once federal forces are able to reach the scene of the attack. I am less certain of the correctness of this claim than I am about his the arguments. If a state is indeed “actually invaded,” it seems to me it would have at least some substantial aut،rity to “engage in war” that the federal government cannot override, even if federal  troops are also helping to repel the invasion.

There is more to Judge Ezra’s ،ysis of the invasion issue. Anyone interested in this important cons،utional question s،uld read the entire section of his careful opinion devoted to this question (pp. 65-98).  It’s a true tour de force. For t،se w، care, Judge Ezra is a Republican Reagan appointee.

Texas Gov. Greg Abbott has indicated that he plans to appeal the decision. And the invasion question may also soon be considered by the en banc Fifth Circuit. We probably haven’t heard the last of this issue. But ،pefully appellate courts will reach the same conclusion as Judge Ezra.

Today’s ruling also includes ،ysis of other issues in the SB 4 case, especially arguments about whether the law is preempted by federal immigration statutes (Judge Ezra concludes it is).

I have previously written about why illegal migration doesn’t qualify as “invasion” here, here, here, and here.