Texas Deploys War Logic About Border: Invasion Clause Explained

Texas officials’ belief they have the authority to employ their own immigration solutions at the Mexican border hinges on a previously failed argument that migrants are invading the state and the federal government has abandoned its duty to stop them.

The US Constitution grants authority to states to defend themselves when “actually invaded” and when the threat is so imminent they don’t have time to wait on congressional approval.

However, in the 1990s three different appeals courts rejected claims that a surge in migrants equals an invasion as the framers intended. Now, some 30 years later, Texas Gov. Greg Abbott (R) and Attorney General Ken Paxton (R) are reviving that argument in defending actions the state has taken at the border to turn back migrants.

Texas is in legal battles with the Biden administration on three major immigration cases. The boldest involves a new state law authorizing officials to arrest and deport migrants suspected of entering the country illegally—measures Biden says are the exclusive authority of the federal government.

A district judge last week blocked the law (S.B. 4) from going into effect, saying surges in migration “don’t constitute an invasion.” On Monday, an appeals court paved the way for the law to go into effect Tuesday, only for the Supreme Court to intervene by the end of the day. The high court said the law won’t go into effect until March 13, pending review of the appellate decision.

Texas has drawn two additional legal challenges from Biden for deploying floating barriers in the Rio Grande and constructing razor wire along the river’s shore.

In all three cases, Paxton’s lawyers are pressing the invasion clause as a defense.

1. How have courts received Texas’ argument?

It’s early, but the feedback has been mixed.

Senior Judge David Ezra, whose docket in Austin includes the S.B. 4 and floating barriers cases, used air quotes at a recent hearing to mock Texas’ “invasion” theory. Those entering the country are mostly unarmed, he noted, thus there’s no evidence Texas “is at war.”

“I haven’t seen any type of military invasion,” Ezra said at the Feb. 15 hearing in the US District Court for the Western District of Texas.

But Judge James Ho of the US Court of Appeals for the Fifth Circuit took the opposite position. Reviewing the floating barriers case, Ho addressed arguments from the Justice Department that a state must get approval from Congress to defend its borders. He said it defied “common sense” because, among other reasons, Congress may not be in session when a state requests approval to forcefully respond to an invasion.

The Fifth Circuit has yet to rule on Texas’ invasion theory, though in December a panel affirmed an injunction against the floating barriers, saying it would be best considered on a fully developed record. The entire court will hear the barriers case in May. The Fifth Circuit is also reviewing the razor wire case and the S.B. 4 case.

The invasion theory could prove persuasive at the Fifth Circuit, one of the country’s most conservative appellate courts, said Barbara Hines, founder of the University of Texas Law School immigration clinic. She predicted it’ll ultimately make its way to the Supreme Court.

“For this extreme argument to work, the Supreme Court would have to overrule years of jurisprudence that has clearly said enforcement and management of immigration laws is the sole province of the federal government and not the states,” she said.

Other lawyers contend the invasion theory is legally sound.

Abbott has “unreviewable authority to determine Texas is being invaded,” lawyers Kenneth Cuccinelli II and D. Michael Hurst Jr. wrote in a brief supporting Texas in the razor wire case. Invasions include any foreign encroachment on a state’s sovereignty, not only those including violence, the lawyers wrote.

2. What have members of Congress said?

Republicans on Capitol Hill have flocked to support Abbott and his interpretation of the invasion clause, faulting the Biden administration for border policies they view as too lax and saying the state has a right to defend itself.

“The federal government simply refused to use the federal authorities to secure the border, but that can’t mean that the state is defenseless,” said Sen. John Cornyn (R-Texas), who was the state’s attorney general earlier in his career.

Dozens of House Republicans backed Texas’ position in litigation over S.B. 4. Sen. Roger Marshall (R-Kan.) has tried and failed to advance a resolution on the Senate floor that would declare an invasion at the southern border.

“The White House is pushing back on Texas, so I think this would give even more clarity and empower the state of Texas to protect themselves,” Marshall said.

Sen. Alex Padilla (D-Calif.) blocked Marshall’s effort on the Senate floor in February, arguing that the invasion rhetoric “has radicalized people in our country” to commit violence against immigrants.

3. What are the prospects at the Supreme Court?

Texas’ conflict with the federal government on immigration enforcement appears designed to push the question of what counts as an invasion to the US Supreme Court, but legal scholars are wary about predicting an outcome.

Federal courts rejected invasion clause claims from New Jersey, New York, and California in a set of mid-1990s cases involving similar states-versus-feds disputes over immigration enforcement.

The Supreme Court’s rightward tilt in recent years leaves uncertainty about how it might view the question now, said Frank Bowman, a constitutional law scholar from the University of Missouri.

“There’s a degree of intellectual malleability here that renders prediction even more difficult than usual,” he said. “So much of how this would work out depends on the particular controversy.”

The Supreme Court has weighed in on a preliminary battle in the razor wire case but didn’t address the invasion theory. In January, the court vacated an injunction pending appeal, a decision on a 5-4 vote that allows Biden to remove the wire until further notice. The court provided no explanation for its decision, which is typical in emergency applications.

The cases are USA v Texas, W.D. Tex., No. 1:24-cv-00008; USA v. Abbott, 5th Cir., No. 23-50632; and Texas v. US Dep’t of Homeland Sec., 5th Cir., No. 23-50869.

Read More:

— From Bloomberg Law

Texas Immigration Law Struck Down by Judge in Win for Biden
Biden Prevails at Supreme Court in Border Fencing Dispute (3)
Judge Overseeing Texas Buoy Challenge Responds to Fifth Circuit
Judge Calls Texas Law Authorizing Migrant Arrests a ‘Nightmare’
Biden Immigration Agenda Faces Uncertain Fate in US Courts

—From Bloomberg News

Texas Picks Fight With Biden Over Powers at the Border
Speaker Rejects Possible Biden Border Actions as ‘Gimmicks’