Immigration Is Not Invasion

In two important cases currently before the U.S. Court of Appeals for the Fifth Circuit, the state of Texas has advanced the argument that illegal migration and drug smuggling qualify as an "invasion" authorizing the state to "engage in war" in response, under Article I of the Constitution. So far, federal courts have uniformly rejected such claims. But if they were to accept them, drastic consequences would follow. Border- state governments would be empowered to attack neighboring countries, even without congressional authorization. And the federal government would have the power to suspend the writ of habeas corpus--thereby detaining people without due process--almost anytime it wants. In addition to these practical considerations, Texas's "invasion" argument is at odds with the text and original meaning of the Constitution. In United States v. Abbott the federal government is suing Texas for installing floating buoy barriers in the Rio Grande to block migration and drug smuggling, thereby creating safety hazards and possibly impeding navigation. (I have authored an amicus brief in United States v. Abbott on behalf of myself and the Cato Institute.) The Biden administration claims this violates the Rivers and Harbors Act of 1899, which bars "[t]he creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States." In United States v. Texas, the state is defending the legality of S.B. 4, a new state law that criminalizes unauthorized migration, expands state law enforcement officials' powers to detain undocumented migrants, and gives Texas state courts the authority to order removal of migrants convicted under the law. The federal government claims S.B. 4 is preempted by federal law and that it infringes on federal authority over immigration.