Stopping an invasion

An inherent sovereign power of states

Photo credit: FOX10, Phoenix, AZ. A U.S. Border Patrol agent watches over migrants waiting to be processed after crossing from Mexico into the United States on December 17, 2023 in Eagle Pass, Texas.

The U.S. Supreme Court on Monday, Jan 24, 2024, in an order, granted the application to vacate an injunction¹ that was preventing the Dept of Homeland Security from cutting or removing razor wire on the border, placed there by Texas personnel.² In other words, the December 19, 2023 order of the United States Court of Appeals for the Fifth Circuit, case No. 23-50869, the U.S. Supreme Court affirmed that the federal government has constitutional jurisdictional authority at our international borders. That was an easy call.

The order does not order or suggest that Texas must stop putting up the razor wire. In fact, according to a tweet on Jan 24, 2024 from Gov. Greg Abbott, Texas has continued to put up razor wire on the border.

Interestingly, through reports from the media, the U.S. Customs and Border Patrol have not been actively trying to remove the razor wire. Michael Adkinson, speaking on behalf of the U.S. Department of Homeland Security, in a tweet on Jan 23, 2024 said “there is no timeline” to remove the razor wire from the border, signaling the likely foot-dragging from CBP who are likely grateful for the help in controlling the massive illegal crossings of the border that are out of control.

For decades now, the U.S. Customs and Border Patrol (long before becoming part of the U.S. Dept of Homeland Security) have worked with Texas National Guard troops and Texas law enforcement officers at all levels of government. They have joined with a common mission to protect the security of the U.S. and border states by enforcing the law. The contradictory message and policy toward this mission from the Biden Administration may not square well with these long-established collaborative working relationships.

The Power to Protect the State from Invasion

The states entered the union by ratifying the U.S. Constitution with the understanding both implicit and explicit that states are sovereigns and come with inherent powers. The Constitution recognizes the sovereign power and natural right of states to defend itself where there is “imminent danger.”

“No State shall, without the Consent of Congress, … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” U.S. Const. art. I, § 10, cl. 3 (the “State Self-Defense Clause”)³

In order to invoke this Constitutional recognition of authority — it is not Constitutionally given or “authorized”, it is Constitutionally recognized as a matter of sovereign power possessed by the states when they entered the union — the Governor of Texas made a finding that there is an invasion at the border. He did so with an official public statement.⁴ You might say the Governor’s action is “authorized” by this clause of the Constitution, as you might say action is authorized by a statute; but the Constitution is supreme to a statute, so maybe saying the action is “protected” by the Constitution would be more accurate. Power here is inherent not given by the Constitution.

Any question about Texas’s actions taken citing the authority or preferably, the protection of the Constitution will have to challenge the Governor’s action in declaring an invasion. The legal test will likely be a high standard asking whether the Governors declaration was “arbitrary and capricious” in his finding and declaration. That means having no basis and erratic. (The word “capricious” comes from the movements of goats darting around directionless and aimlessly.)

In August 2023, U.S. opinion is that 79% of the people disapprove of the Biden Administration’s handling of immigration issues. In the most recent Gallup poll on these issues in August 2023, it was found that among adults in the U.S., 79% disapproved of the way the Biden Administration was handling immigration issues.⁵ Even 39% of the members of his own party, the Democrats, disapproved of his handling of the border.⁶ Although there is not yet a newer Gallup poll (which I consider to be the most scientifically reliable), various special interest centers and media outlet polls have found a drop in 11 points in the area of immigration since this last poll in August.⁷ All of this goes to support the finding of Governor Abbott that there is an invasion. With 4/5ths of the U.S. population (regardless of party affiliation) disapproving of current border policies and that the highest concern among voters in Jan 2024 is immigration issues,⁸ the nation appears to be leaning toward the Texas position.

The State Invasion Clause history

In 1996, New York asked the U.S. Court of Appeals for the Second Circuit for costs from the federal government to pay for housing, education and other expenses for immigrants that had overwhelmed the state’s resources. (Yes that was 1996, not 2024.) In that case they did not even get their day in court, because the federal court found that the type of “invasion” that New York described did not rise to that contemplated by the Constitution. The court cites to The Federalist No. 43 (James Madison) that describes the reason for the States Invasion Clause is to protect states against “foreign hostility” and “ambitious or vindictive enterprises” on the part of other states or foreign nations.⁹ From this, the court found that New York was not being invaded based on the meaning contemplated by the Framers of the Constitution. Here is the quote from the Second Circuit in holding that the plaintiff failed to state a claim upon which relief can be granted:

[New York’s claim is that:] “. . .the influx of legal and illegal aliens into New York State represents an "invasion," and the federal government has failed to protect New York State from this invasion. We think that this count was properly dismissed by the district court.”¹⁰

The Texas case has a growing set of evidence that might likely pass this threshold test in this New York 2012 case, Paladan. The state-organized crime association between the government of Mexico and its drug cartels, as well as dismissive actions in the face of knowledge of China of its fentanyl sales in the U.S. that depend on crossing the southern border to reach its market victims represents foreign nation involvement in “vindictive enterprises”.

Relying on The Federalist No. 43 the Second Circuit interpreted that document as: “(stating that the reason for the Invasion Clause is to protect the states from "foreign hostility" and from "ambitious or vindictive enterprises" on the part of other states or foreign nations).”¹¹

Justice Scalia (dissenting) in a U.S. Supreme Court case in 2012, with regard to interpreting Article I, § 10, Clause 3, recognized “the States’ sovereign interest in protecting their borders.” ¹²

The Governor also lists evidence that Pres. Biden has failed to protect the states from invasion, citing the Constitutional obligation of the federal government to do so in Article IV, § 4, that promises that the federal government “shall protect each [State] against invasion. . .”

The words of the Scalia dissent in 2021 are so on point today, that it is worth making his point here. In Justice Scalia’s usual clever turns of phrase, wrote that if it was true that states could not take action to repel an invasion at their border should the federal government fail to do so, they would have never ratified the Constitution:

Through ratification of the fundamental charter that the Convention produced, the States ceded much of their sovereignty to the Federal Government. But much of it remained jealously guarded—as reflected in the innumerable proposals that never left Independence Hall. Now, imagine a provision—perhaps inserted right after Art. I, §8, cl. 4, the Naturalization Clause—which included among the enumerated powers of Congress “To establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate.” The delegates to the Grand Convention would have rushed to the exits.¹³

The oft quoted phrase that seems even more appropriate here for state’s inherent power to repel an invasion that is dangerous to the citizens of that state and the nation is well to be remembered:

The Constitution is not a suicide pact.¹⁴

—-Justice Robert Jackson

1. This injunction was issued by the U.S. Court of Appeals for the Fifth Circuit

2. https://www.supremecourt.gov/orders/courtorders/012224zr_fd9g.pdf

3. Referred to as the “state self defense clause”.

4. https://gov.texas.gov/uploads/files/press/Border_Statement_1.24.2024.pdf. The Governor’s letter misstates the power by writing it is “constitutionally authorized”, whereas it should be it is “constitutionally recognized.” The constitution really does not authorize anything.

5. https://news.gallup.com/poll/510185/biden-job-approval-higher-ukraine-race-relations.aspx

6. https://news.gallup.com/poll/510185/biden-job-approval-higher-ukraine-race-relations.aspx

7. https://cis.org/Arthur/Immigration-Tops-Voters-Concerns-Latest-Poll-Approval-Presidents-Handling-Plummets

8. https://cis.org/Arthur/Immigration-Tops-Voters-Concerns-Latest-Poll-Approval-Presidents-Handling-Plummets

9. Padavan v. United States, 82 F.3d 23, 28 (2d Cir. 1996) at https://casetext.com/case/padavan-v-us .

10. Padavan v. United States, 82 F.3d 23, 28 (2d Cir. 1996) at https://casetext.com/case/padavan-v-us .

11. Padavan v. United States, 82 F.3d 23, 28 (2d Cir. 1996) at https://casetext.com/case/padavan-v-us .

12. Arizona v. United States, 567 U.S. 387, 419 (2012) (Scalia, J., dissenting)

13. Arizona v. United States, 567 U.S. 387, 419 (2012) (Scalia, J., dissenting)

14. Quoting footnote one, from Kenneth Lasson, “Civil Liberties in Uncivil Times: The Perilous Quest to Preserve American Freedoms,” Bepress Legal Papers series. “Dissenting in Terminiello v. City of Chicago, 337 U.S. 1 at 37 (1949). This oft-quoted dictum is in fact a paraphrase of Justice Jackson’s statement (“There is a danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”), and has been variously attributed to others, like Justices Oliver Wendell Holmes (see Editorial, 93 AMERICAN JOURNAL OF INTERNATIONAL LAW 860) and Arthur Goldberg (see ,e.g., Amy Hack, Forfeiting Liberty, 2 CARDOZO PUBLIC L. POL’Y & ETHICS J. 469 at 514). Holmes never said it. Goldberg did, in Kennedy v. Mendoza-Martinez, 372 U.S. 144 at 160 (1963).” at https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=1797&context=all_fac