Republican attempts to label the migrant surge an “invasion” have fallen flat in the courts, where judges say the flow of people and drugs looks less like a Constitution-breaking military incursion and more like the kinds of border problems that have plagued the country for decades.
The constitutional argument that states have the freedom of action to stiffen their borders was supposed to be the silver bullet. Texas has cited an invasion in its justification for erecting a floating wall in the Rio Grande and in defending a state law creating criminal penalties for illegal immigrants.
Backers of the idea, including prominent Trump administration officials and Republicans in border states, say it should be obvious that record numbers of illegal immigrants and fentanyl detected at the border qualify as an invasion. They say that triggers the Constitution’s invasion clause, allowing states to wage war to defend themselves.
Federal district and appeals court judges have not been receptive.
Judge David Alan Ezra said last week that James Madison and other founding-era figures would not have seen the border smuggling and flows of illegal immigrants in Texas — even the size of the surge — as a state being “actually invaded.”
“Texas’s new interpretation of its power to protect itself against alleged invasions goes far beyond the original and natural meaning of ‘invasion’ and incurably exceeds the power granted to the states by our Founding Fathers,” wrote Judge Ezra, a Reagan appointee to the federal court in Hawaii who is now on senior status and helps with cases in Texas.
The 5th U.S. Circuit Court of Appeals has given the invasion argument little attention as the judges grapple with Texas’ aggressive effort to fill what it sees as holes President Biden has ripped in the border.
Ken Cuccinelli, a major proponent of the invasion argument, said he expects better results as the cases reach other courts.
“I trust that when more open-minded judges who are more respectful of the actual words of the Constitution get this case, you will see more respect from the courts for Texas’ continuing right to defend itself against the invasion taking place across the Mexican border,” he told The Washington Times.
The invasion debate stems from the Constitution’s Article I, Section 10, clause 3, which reads: “No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”
Judge Ezra said “actually invaded” was a term of art well known to the founders and meant an ongoing attempt at military occupation. It was never used to refer to immigration or anything else that didn’t involve a hostile foreign power launching an armed operation.
Judge Ezra suggested the clause is a relic from a time when it might have taken weeks or months to receive limited federal aid to remote parts of the country. He saw the clause as superseded by advances in technology and transportation.
“The United States now has a significant military presence in Texas, and federal military forces could be at the border within a matter of hours,” he wrote. “In addition, the Texas National Guard is on site and could be activated by the president in the case of a national emergency. And Border Patrol is already at the border daily.”
Mr. Cuccinelli, a former attorney general of Virginia and acting deputy secretary at the Homeland Security Department in the Trump administration, said the legal principle is still intact. He pointed out that Texas, for most of its time as a state, defended its own border.
“It took until the latter half of the 20th century for the United States to assume full-time, primary responsibility for policing our Southern border,” he said. “Where does Judge Ezra think Texas’ authority for all those years came from? Instead of a straightforward answer, Judge Ezra pretends all of that history does not exist.”
Legal issues aside, the public tends to see the border situation as an invasion, according to a Rasmussen Reports survey this month.
The poll found 64% of likely voters said that was an “accurate” description, compared with 33% who said the border didn’t qualify as an invasion.
Ilya Somin, a law professor at George Mason University and a constitutional scholar at the libertarian Cato Institute, said Texas and other invasion proponents are running into problems of definitions and implications.
“It’s a bad argument,” he said. “Most judges, maybe not all, but most judges will be reluctant to bite the bullet on it.”
Mr. Somin, who has filed a brief in one of the lawsuits on behalf of himself and the Cato Institute, said the type of invasion the founders had in mind was a large-scale organized and violent attack, not porous borders that allow in drugs and people.
He said the implications of Texas winning its case are worrying. For one thing, the term “invasion” is used as a trigger for when the government can suspend the writ of habeas corpus, so if the border is an invasion, the federal government could eliminate a core constitutional protection.
Mr. Somin said if the state invasion argument prevails, border states could start wars on their own if they decide too much contraband is flowing into their jurisdictions.
Texas Attorney General Ken Paxton’s office didn’t respond to a request for comment.
Texas has the backing of 25 Republican governors who said the state has a “constitutional right to self-defense.” Republicans on Capitol Hill are also seeking to fuel Texas’ claims by proposing legislation that would put Congress on record calling the border mess an invasion.
The Supreme Court has yet to confront the issue squarely, though Justice Sonia Sotomayor, in an opinion last month dealing with early legal sparring over Texas’ law criminalizing illegal immigration, cited Judge Ezra’s invasion analysis approvingly.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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