by Stephen L. Carter
In the continuing skirmish between Texas and the United States, the feds just took another loss. A sharply divided U.S. Court of Appeals for the Fifth Circuit has rejected the Biden administration’s legal effort to force the state to dismantle the 1,000-foot-long barrier it had placed in a section of the Rio Grande often used for illegal border crossings.
Although those crossings are a big and often ugly political issue, the court’s decision was narrow. Yet beneath what appears to be humdrum statutory interpretation lurks a far more explosive issue the judges chose not to touch: whether illegal immigration constitutes an “invasion” under the Constitution — an all-too-common claim in today’s political rhetoric.
The litigation began in the summer of 2023, when the federal government filed suit, claiming that the “floating border wall” Texas had erected two weeks earlier near Eagle Pass violates the Rivers and Harbors Appropriation Act, which prohibits obstruction of “navigable” waterways. The trial court issued a preliminary injunction ordering Texas to remove the barrier from the river, but allowing it to be placed on shore. A three-judge panel of the Fifth Circuit panel affirmed that decree. Now the whole court, sitting en banc, has ruled that the injunction was improper because the federal government was unlikely to prevail at trial.
In particular, Judge Don Willett’s majority opinion found that the federal government had supplied insufficient evidence that the obstructed section of the Rio Grande was navigable — a word the Supreme Court had previously held to mean “of practical service as a highway of commerce.” To the majority, this meant a showing that trade had recently traveled or could theoretically travel “along” the river. In her separate opinion, Chief Judge Priscilla Richman argued that a ferry across the river would be enough. Whoever’s right, the issue of how to define navigability hardly seems rich fodder for political argument.
What deserves more attention, however, is the question the court chose not to decide. Texas argued that even should the statute turn out to forbid the floating wall, it nevertheless had the inherent right to construct the barrier under Article I, Section 10, Clause 3 of the Constitution, which prohibits states from waging war on their own “unless actually invaded, or in such imminent Danger as will not admit of delay.” In a footnote, the Fifth Circuit majority explains that there is no need to decide the issue, because the case could be decided on other grounds.
Here’s where things get both interesting and strange. The claim that illegal crossings from Mexico constitute an invasion isn’t new. One finds it in rhetoric of nativist politicians and journalists going back well over a century. During the 1990s, several states filed lawsuits against the federal government seeking compensation for the costs of caring for unauthorized immigrants. The states argued that Washington had done nothing to protect against “invasion” within the meaning of the clause. All those suits were dismissed, most on the ground that whether an invasion exists is a “political question” — meaning an issue that cannot be decided in court.
That’s exactly the view that Judge James Ho took in his separate concurring opinion: that there are no standards by which the courts can decide whether a surge in illegal border crossings and cross-border drug smuggling qualifies as an invasion, so the judiciary should defer to the view of the affected state. Many scholars would respond that the standards are clear, and illegal immigration isn’t an invasion. Judge Ho isn’t so much disagreeing as insisting that it’s not the court’s call.
The tricky part is that the older disputes over “invasions” dealt with suits by states that wanted money; the Texas case deals instead with when and how the states can act on their own. Is that really the way we want to go?
Those who take Texas’ side have cited statements made by those who wrote or ratified the Constitution, such as James Madison’s approval of calling forth the militia against smugglers. And as a topic of scholarly speculation, this is great stuff.
But let’s be clear about the real-world implications.
If Judge Ho is serious about full-on application of the political question doctrine, we wind up here: Should Texas decide it’s being invaded by Mexico, the federal courts would have to keep out. And why wouldn’t the same deference be due if the alleged invasion was from New Mexico?
The executive branch might get involved, but it’s not as if presidents can give commands to governors. Congress could resolve the dispute by enacting a law, but Congress doesn’t do much enacting these days. So in the real world, the discretion of the states to determine that they’re being invaded — and decide how to respond — would be broad.
Maybe on appeal the Supreme Court will enunciate a limiting principle; or maybe we’ll turn out to have been living in an Alex Garland movie all along.
