In its standoff with the federal immigration authorities along the U.S.-Mexico border along the Rio Grande River, Texas argues that it can override the federal government’s immigration policy because current migration into the state and criminal acts by drug cartels amount to an “invasion.”
“I have already declared an invasion … to invoke Texas’s constitutional authority to defend and protect itself,” Gov. Greg Abbott (R) said in a statement on Jan. 24. “That authority is the supreme law of the land and supersedes any federal statutes to the contrary.”
Abbott’s declaration of an invasion comes as part of an ongoing standoff between the state of Texas and the federal government over the Texas-Mexico border, which is in turn part of a larger, ideological battle between Republicans and Democrats over immigration rhetoric and policy. In 2023, Abbott ordered the Texas National Guard to erect razor wire fencing and buoys along the Rio Grande to both deter unauthorized migrant crossings, and then, in January, to prevent federal Border Patrol agents from accessing the border to enforce immigration law and save lives, if necessary. Meanwhile, the Biden administration has ordered these measures removed, which Abbott has refused to do. The Supreme Court ruled on Jan. 22 that Texas cannot prevent the Border Patrol from removing razor wire fencing to access the border, but Abbott has remained defiant, raising fears of a constitutional crisis.
Once confined to the nativist far-right, this rhetoric of immigrant invasion has surged into the Republican Party mainstream since former President Donald Trump’s rise in 2016. All but one GOP governor has endorsed Abbott’s claim of an invasion. This rhetoric has been deployed throughout American history to fuel support for anti-immigration measures and most notably in the Supreme Court’s opinion upholding the Chinese Exclusion Act of 1882.
“This trope of immigration and invasion was initially developed in the end of the 19th century as a political critique of racially suspect, generally poor, low-skilled laborers,” said Matthew Lindsay, a law professor at the University of Baltimore School of Law. It portrayed immigrants as faceless masses, who were racially incapable of assimilating into American conceptions of liberty, and would undermine the country’s system of free labor by taking work at exploitative wages.
In 1889, the Supreme Court gave the federal government the power over immigration law that persists today, in a decision upholding the Chinese Exclusion Act that was riddled with racist invasion rhetoric. The court claimed that migrants were not subject to constitutional protections as the federal government needed all tools to repel the “Oriental invasion” in order to “preserve its independence, and give security against foreign aggression and encroachment.” Paradoxically, it is that power that Texas now seeks to undermine by deploying the same rhetoric of invasion originally used to justify granting it in the first place.
Such rhetoric has also fueled nativist violence in the modern era, including attacks by terrorists claiming anti-immigrant motives at the Tree of Life Synagogue in Pittsburgh, Pennsylvania, in 2018 and a Wal-Mart in El Paso, Texas, in 2019.
But Abbott’s declaration of invasion isn’t merely a rhetorical gambit. He’s making a legal argument, too, in the case of U.S. v. Abbott, currently before the full Fifth Circuit Court of Appeals.
Is immigration an invasion?
In that case, Texas argues it has a constitutional right to enforce its own immigration and foreign policy at the border if it thinks the federal government isn’t enforcing the law in a way the state approves of. Abbott claims that the federal government has abdicated its responsibility under Article IV Section 4 of the Constitution to “guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion.” Therefore, the state has the right to “engage in War,” which includes the placing of buoys and razor wire fencing, under Article I Section 10 because it claims to have been “actually invaded.”
“This is a bad argument and if accepted by courts would have dangerous consequences,” said Ilya Somin, a law professor at George Mason University and chair of constitutional studies at the Cato Institute, a libertarian think tank.
The problem with Texas’ argument that immigration amounts to an invasion is pretty simple: Immigration simply isn’t an invasion. This legal argument has been rejected by at least five appeals courts over the past 30 years, including as recently as 1997, also by the Fifth Circuit in a case brought by Texas, and is refuted by the statements of the Constitution’s authors.
In the 1997 case, Texas argued that the alleged financial burdens of unauthorized immigration on the state violated the federal government’s guarantee to provide “a Republican Form of Government” under Article IV Section 4 of the Constitution ― the same section it now cites to claim an invasion. The Fifth Circuit appeals court rejected this argument, stating it “fails to allege a realistic risk of denying to Texas its guaranteed republican form of government.”
That ruling also declared the entire premise of the lawsuit couldn’t be judged by the courts because the policies at issue are reserved for the political branches ― Congress and the executive ― under the Constitution, a rule called the “political question doctrine.” Nonjusticiable political questions tend to be ones involving foreign policy or national defense, like, say, the declaration of an invasion and the ability to engage in war.
This is why other appeals courts also rejected more direct claims that immigration amounted to an invasion. A few courts also explained that even if they did not follow the political question doctrine and could rule on the claim, immigration simply isn’t an invasion.
“In order for a state to be afforded the protections of the Invasion Clause, it must be exposed to armed hostility from another political entity, such as another state or foreign country that is intending to overthrow the state’s government,” the Second Circuit Court of Appeals ruled in the 1996 case of Padavan v. U.S.
In New Jersey v. U.S., the Third Circuit Court of Appeals ruled in 1996 that “New Jersey … offers no support whatsoever for application of the Invasion Clause to this case or for its reading of the term ‘invasion’ to mean anything other than a military invasion.”
And in 1997, the Ninth Circuit Court of Appeals ruled in California v. U.S. that arguments labeling immigration as an invasion under the Constitution fly in the face of the words of the Constitution’s authors.
“California ignores the conclusion set forth by our Founders,” the court’s opinion says, rejecting the state’s argument claiming financial compensation from the federal government to cover the costs incurred by the state due to the presence of unauthorized migrants. “In The Federalist No. 43, James Madison referred to the Invasion Clause as affording protection in situations wherein a state is exposed to armed hostility from another political entity. Madison stated that Article IV, § 4 serves to protect a state from ‘foreign hostility’ and ‘ambitious or vindictive enterprises’ on the part of other states or foreign nations. It was not intended to be used as urged by California.”
Just as immigration is not an invasion, neither are the current criminal acts of drug cartels. In a paper examining the legal basis for a constitutional claim of an invasion for the conservative Texas Public Policy Foundation, Joshua Treviño uses Founding Era documents, transcripts and dictionaries to show that the criminal acts of non-state actors may only rise to the level of an invasion if “they have committed or are manifestly intending to commit acts of hostility, such as murder and armed robbery, against state officials or the people of the state; and that, moreover, they have committed or are intending to commit such acts on a scale or with a degree of organization that deliberately overthrows or curtails the lawful sovereignty of the state.”
It is, therefore, possible for non-state actors to invade a state. But criminal acts that do not pose a threat to the governance or sovereignty of the state don’t qualify as an invasion.
A rhetorical — and legal — ripple effect.
The fallout from a ruling in favor of Texas’ argument would have immense and very bad consequences.
“If Texas could invoke an invasion in this way, it would allow the state unilateral and unfettered authority to wage war at the southern border with no congressional oversight,” said Kate Melloy Goettel, legal director for the American Immigration Council, a nonprofit that supports and advocates for immigrants.
Plus, because the word “invasion” also appears in other areas of the Constitution, the impact of a ruling could go further than just this one situation. For example, the Constitution prevents the suspension of habeas corpus, the protection against unlawful or indefinite detention, except “when in Cases of Rebellion or Invasion the public Safety may require it.” If immigration or cartel crime amounts to an invasion, then the president could, at any time, choose to suspend habeas corpus rights.
“That would be a very dangerous power for the president to have,” Somin said. “It’s somewhat ironic that Republicans in the state of Texas and elsewhere apparently trust President Biden so much, love him so much, that they want him to have this kind of power to detain people without charges.”
A suspension of habeas corpus rights would not apply solely to immigrants, but to all citizens. This unintended consequence of Abbott’s argument would pose a grave threat to widely accepted notions of freedom and liberty by allowing a future president ― who conservatives may like even less than Biden ― to claim that drug-smuggling, cross-border crime or migration, things that are always happening, amount to an invasion and use that claim to seize the power to jail whomever they like for whatever reason.
So far, no judge has found any interest in accepting Texas’ claims. Fifth Circuit District Court Judge David Ezra, a Reagan appointee, rejected it when he ruled on Sept. 6, 2023, in U.S. v. Abbott that the U.S. can remove the buoys placed by Texas at the Rio Grande. Ezra both ruled on the placement of the buoys under the Rivers and Harbors Act, the main law at issue in the case, while also opining on Abbott’s claim that he can unilaterally declare an invasion and deploy war-time measures in response.
“Texas hopes to distinguish its case from the resounding rejection of similar ‘invasion’ arguments in the cases cited above by centering the argument on the State’s right to ‘engage in War’ when ‘actually invaded,’” Ezra wrote. Adding, “Under this logic, once Texas decides, in its sole discretion, that it has been invaded, it is subject to no oversight of its ‘chosen means of waging war.’ Such a claim is breathtaking.”
In a footnote, Ezra went further, explaining that Texas’ argument would “give the Governor of Texas more power than is possessed by the President of the United States without authorization from Congress.”
“The Texas Governor could essentially declare and wage war indefinitely at the Texas Border without Congressional authorization or oversight of any kind,” Ezra wrote.
A three-judge panel on the Fifth Circuit appeals court affirmed Ezra’s decision in a 2-1 vote on Dec. 1, 2023. Notably, the majority opinion sided with Ezra’s rejection of the invasion argument by stating that the U.S. was likely to win, while the dissent did not endorse Texas’ argument.
The case is, however, still alive, as the full Fifth Circuit appeals court accepted Texas’ appeal that the full court hear arguments and will hear arguments on March 19. It could go further, to the Supreme Court, which has not directly ruled on claims that immigration amounts to an invasion.