Texas Claims Immigration and Drug Smuggling Qualify as “Invasion”: Fifth Circuit Grants En Banc Rehearing

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Earlier today, the US Court of Appeals for the Fifth Circuit granted rehearing en banc 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, thereby creating safety hazards and possibly impeding navigation. The Biden Administration claims this violates the Rivers and Harbors Act of 1899. Texas has a different interpretation of the Act, but also argues that one of the “invasion” clauses of the Constitution gives it the power to install the buoys even if a federal statute forbids it. Article I, Section 10, Clause 3 of the Constitution states that  “[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 in defiance of federal statues, and even in the absence congressional authorization for war.

Both the trial court and the Fifth Circuit  panel ruled against Texas on statutory grounds, and also rejected the “invasion” argument. The case will now be reconsidered by the full Fifth Circuit, including all 17 active judges on the court (a majority of whom are conservatives). En banc rehearing usually—but not invariably—means that the full court wants to overturn or at least significantly modify the ruling of the initial three-judge panel.

Texas’ petition for rehearing en banc largely focuses on the statutory question. But the en banc court could potentially consider the “invasion” issue, as well. The latter is the main focus of my concern with the case, as it has broad implications that go far beyond the water buoy issue.

In previous writings about the case, and claims that illegal migration 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. Whatever the en banc court decides on the statutory question, I hope it will not go down this dangerous road.