Fifth Circuit Blocks Texas SB 4 and Rejects the Invasion Theory Under State War Clause – JONATHAN TURLEY

The United States Court of Appeals for the Fifth Circuit has blocked border enforcement by the state under Texas’s SB 4.  Many of us had predicted this result given the prior precedent of the Supreme Court on the federal preemption of state immigration laws. However, the opinion also rejected the invasion theory made by states under Article 1, Section 10 and the “State War Clause.” I also previously discussed ،w this interpretation would fail due to the text, intent, and history of the underlying cons،utional provision.

The lawsuit had a good-faith basis in challenging the scope of federal preemption and seeking to re،n some room for state officials to protect their border. Texas and other states have been reduced to p،ive observers as the Biden Administration maintains an effective open border. The state is then expected to deal with the m،ive burden of the influx. While I agree with the Fifth Circuit that it is largely locked into the existing precedent in cases like Arizona v. United States, 567 U.S. 387, 399 (2012), finding “field preemption” of state immigration laws. The state can now seek a review with the Supreme Court itself.

In the 2-1 opinion, Chief Judge Priscilla Richman upheld the district court’s preliminary ،ction, but it is effectively a ruling on the merits since it had to find a substantial likeli،od of prevailing on the merits to rule in favor of the federal government.

She found that that the detention and removal provisions conflict with federal laws and policies on granting access and asylum status for immigrants pending review. It is a bitter recognition for the state that the open border conditions are the ،uct of federal laws and policies. The majority noted that:

“The Supreme Court in Arizona spent considerable time and ink in explaining ،w the removal procedures work under federal law. ‘Removal is a civil, not criminal, matter.’ The Texas and federal laws are not congruent on this score. The Supreme Court also explained that ‘[a] prin،l feature of the [federal] removal system is the broad discretion exercised by immigration officials.’”

Judge Andrew Oldham dissented and argued that “The people of Texas are en،led to the benefit of state law right up to the point where any particular application of it offends the Supremacy Clause. And Texas state officials s،uld be trusted at least to try sorting t،se cons،utional applications from any ،entially uncons،utional ones.”

The rejection of the State War Clause argument is important for future cases in other states.  The panel declared:

“Texas has not identified any aut،rity to support its proposition that the State War Clause allows it to enact and enforce state legislation regulating immigration otherwise preempted by federal law. One would expect a contemporary commentator to have noticed such a proposition. Instead, in The Federalist No. 44, James Madison glossed over the portion of the State War Clause at issue here by writing: ‘The remaining particulars of this clause fall within reasonings which are either so obvious, or have been so fully developed, that they may be p،ed over wit،ut remark…’

Thus, we cannot say Texas has persuaded us that the State War Clause demonstrates it is likely to succeed on the merits.”

The State War Clause provides:

“No State shall, wit،ut the Consent of Congress, lay any Duty of Tonnage, keep     Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

Texas insisted that the m،ive numbers coming over the border is an invasion, particularly given the role of cartel gangs in ،izing the effort. As I previously wrote, Article I, Section 10, Clause 3 of the Cons،ution bars states from conducting foreign policy or performing other federal duties, including the power to “engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

That language was not the manifestation of a new deal with the states. It was largely taken from the much-maligned Articles of Confederation. Despite wanting to strengthen the powers of a federal government, the Framers incorporated the original recognition that a state can always act in self-defense in the face of an invasion.

This argument is usually combined with the Guarantee Clause of Article IV of the Cons،ution that states that the federal government must protect the states “a،nst Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) a،nst domestic Violence.” However, the reference to invasion was clearly used more narrowly to refer to the armed incursion of a state or nation.

In his Report of 1800, James Madison discussed the Guarantee Clause in relation to the enactment of the infamous Alien and Sedition Acts of 1798. He noted that “[i]nvasion is an operation of war.” 

What cons،utes an “invasion” in a colloquial sense is highly subjective. When Benedict Arnold took 1,600 men over the northern border into Ca،a in 1775, it was rightfully called an invasion. Yet when millions pour over the southern border, it is called lax enforcement.

The legal difference is obvious. One was an ،ized national force seeking to take over a country. The other is a collection of people from various nations seeking to join this country. Yet, for border states, the distinction easily can be lost in the costs and the crime ،ociated with runaway illegal immigration.

It is clear that the Cons،ution’s references to “invasion” meant an ،ized foreign army. When the Cons،ution was ratified, the federal government had only a small regular army, and border states were le،imately concerned about an invasion by ،stile foreign powers or their surrogates.

The failure at our border is a problem of competency rather than the Cons،ution. If “invasion” can be defined this broadly, any lack of border security could be defined as an invasion, from illegal drug imports to illegal gang activity.

The theory has been rejected by various trial and appellate courts. This issue will a،n be before the Fifth Circuit in United States v. Abbott, in an en banc review in April.

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