Yesterday, the US Court of Appeals for the 5th Circuit ruled against Texas in United States v. Abbott, a case where the federal government is suing the state of Texas for installing floating buoy barriers in the Rio Grande River to block migration and drug smuggling, creating a safety hazard and possibly impeding navigation. The Biden Administration claims this violates the Rivers and Harbors Act of 1899. Texas argues otherwise, but but also cites one of the "invasion" provisions of the Constitution as justification for the state's actions. Texas relies on Article I, Section 10, Clause 3 of the Constitution, which provides, "[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." Texas contends that illegal migration and drug smuggling qualify as "invasion," and therefore the Constitution gives the state the power to take military action in response, even if doing so might violate a federal statute, and even if there is no congressional authorization for war.
In previous writings about this case, and the broader issues raised by claims that immigration and drug smuggling qualify as "invasion," I have explained why such contentions are badly wrong as a matter of text and original meaning, and why accepting them would set a dangerous precedent empowering states to engage in war without congressional authorization, and the federal government to suspend the writ of habeas corpus at virtually any time it wants.
In August, a federal district court ruled against Texas on both the statutory and constitutional issues, and entered a preliminary injunction against Texas. Yesterday, the Fifth Circuit affirmed, in a divided 2-1 ruling.
The majority opinion by Judge Dana Douglas focused almost entirely on the statutory issue. However, it does also note that it upholds the district court's ruling that the federal government is likely to prevail on the merits (one of the criteria for upholding a preliminary injunction), and this applies to the district court's ruling on the "invasion" argument, as well as the statutory one.
In a dissenting opinion, Judge Don Willett argues that the majority got the statutory issue wrong, mainly because the part of the river in question is not "navigable," and therefore the relevant statute doesn't apply to it. He also argues that the government failed to prove that it would suffer "irreparable harm" if the injunction was denied, or that the balance of equities and the public interest require an injunction. However, he also noted that "Texas has not offered concrete evidence that the barrier has saved lives or reduced illegal crossings and drug trafficking." Significantly, Judge Willett did not endorse Texas's invasion argument.
I won't opine on the statutory issue. Both the majority and Judge Willett make some good points there. My interest is focused on the "invasion" theory, which has enormous significance that goes beyond this specific case. I am happy that, so far, none of the judges who have considered the case endorsed it. For those keeping track, the district judge is a Reagan appointee, the two judges in the Fifth Circuit majority are Democratic appointees, and Judge Willett is a libertarian-leaning conservative appointed by Trump.
Texas will likely try to get the Supreme Court to hear the case. If the Court takes it, I hope they too will reject the "invasion" theory, regardless of what they do on the statutory question.
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