In my article from today, Lawfare explains why Texas is wrong to compare illegal immigration to cross-border drug trafficking in two significant cases that are now being litigated in federal courts. On behalf of the Cato Institute and myself, I late filed an amicus brief in United States v. Abbott in which some of the points made in the post are elaborated in greater detail.
Here’s an extract from the post:
The state of Texas has made the case that, under Article I of the Constitution, illegal immigration and drug trafficking constitute an “invasion” that allows the position to “engage in combat” in response to two significant cases that are now before the U.S. Court of Appeals for the Fifth Circuit. So much, federal courts have equally rejected such claims. However, if they were to take them, severe consequences may follow. Boundary- state governments may be empowered to attack adjacent countries, yet without congressional authorization. And almost anywhere the national government would be able to suspend the writ of habeas corpus and detain people without the proper process. In addition to these realistic considerations, Texas’s “invasion” explanation is at odds with the words and original meaning of the Constitution.
The federal government is suing Texas in United States v. Abbott for installing floating buoy restrictions in the Rio Grande to impede immigration and drug trafficking, creating health risks and possibly preventing navigation. The Biden administration claims that this is in violation of the River and Harbors Act of 1899, which prohibits” t]he design of any restriction to the accessible capability of any of the waters of the United States.” In , United States v. Texas, the condition is defending the propriety of , S. B. 4, a new state law that criminalizes illicit immigration, expands the powers of state law enforcement to prosecute illegal immigrants, and gives Texas condition courts the authority to impose order on immigrants who have been found guilty of violating the rules. The federal government asserts that S. B. 4 is prohibited by federal laws and violates the power of the federal government to regulate emigration.
In both instances, Texas argues the national government’s interpretation of the important rules is wrong. The state contends that the Invasion Clause of Article I of the Constitution grants it the authority to put beacons on the river boundary it shares with Mexico and to impose S. B. laws. 4 perhaps if federal regulations forbid such activities. Article I, Section 10, Clause 3, of the Constitution states that” ]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”. According to Texas, drug trafficking and illegal immigration fall under the category of “invasion” and that the Constitution empowers the position to launch military action in response to federal law violations, even in the absence of parliamentary authorization for war.
The legal word undermines the idea that “invasion” includes illegal movement and trafficking. Texas ‘ War Section allows says to “engage in combat” in response. That implies that an “invasion” may be the kind of coordinated assault that would typically lead to full-fledged battle in response, including sending troops to attack and possess the nation from which the invasion originated.
The federal government must defend the claims against domestic violence, as required by Article IV of the Constitution’s Guarantee Clause, and upon request of the Legislature or the Executive ( when the Legislature cannot be convened ). Here, war is paired with “domestic Violence “—which in 18th century use refers to rebellion against the state government, not the modern use of the term to denote murder in home and personal relationships. Under the extended- standing theory of , noscitur a sociis,” a word does get known by the company it keeps”. These, it makes little sense to believe that “invasion” includes violent behavior, when it is coupled with “domestic Violence”.
The text is strengthened by the original significance…
In his , Report of 1800, James Madison, one of the leading framers of the Constitution, responded to claims that the Guarantee Clause authorized the notorious Alien and Sedition Acts of 1798 by emphasizing that” ]i ] nvasion is an operation of war” ,and thus the Clause does not authorize restrictions on immigration. The same reasoning applies to the use of “invasion” in Article I.
