The United States Court of Appeals for the Fifth Circuit has blocked border enforcement by the state under Texas’s SB 4. Many of us had predicted this result given the prior precedent of the Supreme Court on the federal preemption of state immigration laws. However, the opinion also rejected the invasion theory made by states under Article 1, Section 10 and the “State War Clause.” I also previously discussed how this interpretation would fail due to the text, intent, and history of the underlying constitutional provision.
The lawsuit had a good-faith basis in challenging the scope of federal preemption and seeking to regain some room for state officials to protect their border. Texas and other states have been reduced to passive observers as the Biden Administration maintains an effective open border. The state is then expected to deal with the massive burden of the influx. While I agree with the Fifth Circuit that it is largely locked into the existing precedent in cases like Arizona v. United States, 567 U.S. 387, 399 (2012), finding “field preemption” of state immigration laws. The state can now seek a review with the Supreme Court itself.
In the 2-1 opinion, Chief Judge Priscilla Richman upheld the district court’s preliminary injunction, but it is effectively a ruling on the merits since it had to find a substantial likelihood of prevailing on the merits to rule in favor of the federal government.
She found that that the detention and removal provisions conflict with federal laws and policies on granting access and asylum status for immigrants pending review. It is a bitter recognition for the state that the open border conditions are the product of federal laws and policies. The majority noted that:
“The Supreme Court in Arizona spent considerable time and ink in explaining how the removal procedures work under federal law. ‘Removal is a civil, not criminal, matter.’ The Texas and federal laws are not congruent on this score. The Supreme Court also explained that ‘[a] principal feature of the [federal] removal system is the broad discretion exercised by immigration officials.'”
Judge Andrew Oldham dissented and argued that “The people of Texas are entitled to the benefit of state law right up to the point where any particular application of it offends the Supremacy Clause. And Texas state officials should be trusted at least to try sorting those constitutional applications from any potentially unconstitutional ones.”
The rejection of the State War Clause argument is important for future cases in other states. The panel declared:
“Texas has not identified any authority to support its proposition that the State War Clause allows it to enact and enforce state legislation regulating immigration otherwise preempted by federal law. One would expect a contemporary commentator to have noticed such a proposition. Instead, in The Federalist No. 44, James Madison glossed over the portion of the State War Clause at issue here by writing: ‘The remaining particulars of this clause fall within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark…’
Thus, we cannot say Texas has persuaded us that the State War Clause demonstrates it is likely to succeed on the merits.”
The State War Clause provides:
“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.”
Texas insisted that the massive numbers coming over the border is an invasion, particularly given the role of cartel gangs in organizing the effort. As I previously wrote, Article I, Section 10, Clause 3 of the Constitution bars states from conducting foreign policy or performing other federal duties, including the power to “engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”
That language was not the manifestation of a new deal with the states. It was largely taken from the much-maligned Articles of Confederation. Despite wanting to strengthen the powers of a federal government, the Framers incorporated the original recognition that a state can always act in self-defense in the face of an invasion.
This argument is usually combined with the Guarantee Clause of Article IV of the Constitution that states that the federal government must protect the states “against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” However, the reference to invasion was clearly used more narrowly to refer to the armed incursion of a state or nation.
In his Report of 1800, James Madison discussed the Guarantee Clause in relation to the enactment of the infamous Alien and Sedition Acts of 1798. He noted that “[i]nvasion is an operation of war.”
What constitutes an “invasion” in a colloquial sense is highly subjective. When Benedict Arnold took 1,600 men over the northern border into Canada in 1775, it was rightfully called an invasion. Yet when millions pour over the southern border, it is called lax enforcement.
The legal difference is obvious. One was an organized national force seeking to take over a country. The other is a collection of people from various nations seeking to join this country. Yet, for border states, the distinction easily can be lost in the costs and the crime associated with runaway illegal immigration.
It is clear that the Constitution’s references to “invasion” meant an organized foreign army. When the Constitution was ratified, the federal government had only a small regular army, and border states were legitimately concerned about an invasion by hostile foreign powers or their surrogates.
The failure at our border is a problem of competency rather than the Constitution. If “invasion” can be defined this broadly, any lack of border security could be defined as an invasion, from illegal drug imports to illegal gang activity.
The theory has been rejected by various trial and appellate courts. This issue will again be before the Fifth Circuit in United States v. Abbott, in an en banc review in April.
Did the FF’s intend a rogue president to stand aside as barges and ships off load Chinese civilians by the millions, too? It could happen if you give them an opening.
One compromised president gets to change the political, economic, and social fabric of the USA just for votes.
Apparently, no one is asking where it ends, and the FF’s never expected the nation to be led by short sided craven grifters.
Remember who is behind this . Not all these poor people. Dont worry about them, they came and they can leave.
Our problem our curse and our parasites, are the plutocrats, the billionaires, specifically the ones who call themselves Americans, like Geo Soros, who have worked tirelessly for decades to bring us to this point. They want the surplus labor, the bigger “reserve army of unemployed,” they want the “pluralism” aka the social atomization, they want the disunity that is, they want the chaos, they want the conflict. All, because it helps THEM. It protects THEM. Chaos and disorder help the capitalist overlords.
You socalled Marxists dont get that do you, because they are paying the socalled Marxists in America to fiddle around with fake movements like trans whatever. You trash are just unarmed mercenaries.
You conservatives are poo for brains too. You have upheld a Republican party that would sell your mom down the river for a dollar. The leadership of that party is worthless, colluding with the billionaires in most instances.
The Democrats are the worst of course, opportunistically lining their own nests through this racket, whether its Fat Pritzker’s hotel buddies taking rent for migrants from state government, or funcitonaries of NGOs getting paid, or the polticos who will benefit from reapportionment in blue states. All, racketeers!
Patriotic Americans must stop this by dragging out the pitchforks and going for the TOP. If we win, what then?
Like other citizens, they are entitled to equal protection of laws. So, each billionaire is entitled to a fair trial before his or her hanging for treason. I’m sure a handful may be acquitted. They will be called “national capitalists” in honor of their helping the nation.
Saloth Sar
Is this not enough reason alone to Annex; Baja California, Sonora, Chihuahua, Caohila, Nuevo Leon, Tamaulipas.
Take back Our Investments by American Companies in the Maquiladora, Protecting the Rio Grande and Bay of California, and Securing the Boarder?
The nerve of Mexico’s President Andrés Manuel López Obrador, He does not spend a Dime (Peso) of his own money, He demands that the US pick up the tab for Central America and the Caribbean, He employs the Cartels to flood our Country with Illegal Drugs, He only cares about himself. … Enough is Enough.
𝐌𝐞𝐱𝐢𝐜𝐨 𝐏𝐫𝐞𝐬𝐢𝐝𝐞𝐧𝐭 𝐓𝐡𝐫𝐞𝐚𝐭𝐞𝐧𝐬 𝐔.𝐒. 𝐖𝐢𝐭𝐡 𝐌𝐨𝐫𝐞 𝐈𝐥𝐥𝐞𝐠𝐚𝐥 𝐈𝐦𝐦𝐢𝐠𝐫𝐚𝐧𝐭𝐬
Joe Biden certainly doesn’t scare him.
By: Erik Lewis ~ March 28, 2024
https://spectator.org/mexico-president-threatens-u-s-with-more-illegal-immigrants/
Dennis
Is bludgeoning a woman to death a terrorist act a hate crime or just murder? Is importing thousands of pounds of fentanyl in an organized criminal enterprise using illegal immigrants a terrorist act?
Try again Communist
ACTUALLY INVADED – THE TRUTH, THE WHOLE TRUTH, AND NOTHING BUT THE TRUTH
There is absolutely no requirement in the Constitution that invasion be of the military type, kind, class, or group.
Texas has been invaded, as the manifest tenor of the Constitution of the United States of America clearly and unequivocally requires for a State to “engage in War” in Article 1, Section 10.
Texas is in such imminent Danger as will not admit of delay—that danger is burgeoning daily with 2,000 more invaders currently on the way.
10 million illegal aliens who are fraudulently applying for “asylum” have invaded Texas and America for “conquest or plunder” of American finances, enterprises, and citizens, per Merriam-Webster.
Let’s all read together the words of the Constitution, the whole Constitution, and nothing but the Constitution—the Constitution that holds dominion and supremacy in America.
_____________________________________________________________________________________________________________________________________________________________________________________________
Article 1, Section 10, Clause 3
No State shall,…engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
______________________________________________________________________________________________________________________
Merriam-Webster
invade
verb
in·vade in-ˈvād
transitive verb
1: to enter for conquest or plunder
2: to encroach upon : infringe
3a: to spread over or into as if invading : permeate
doubts invade his mind
3b: to affect injuriously and progressively
I surmise that James Madison was wholly unfamiliar with the semantics and methodology of “hot” war and “cold” war; in his time and era, there was only kinetic military force (i.e. hot war).
Mexico, Haiti, Central and South America, Africa, Afghanistan, China, and countries from around the world have sent invaders who fraudulently claim asylum—many being purveyors of violence themselves—en masse into America for economic plunder and conquest.
The ultimate goal of communists (liberals, progressives, socialists, democrats, RINOs, AINOs) in America is to flood the census with numbers and to flood American elections with foreign so-called “voters.”
The goal of the communists (liberals, progressives, socialists, democrats, RINOs, AINOs) in America is conquest, seizure, and extirpation of the United States of America and the globalization of communism.
The American Founders restricted the vote in their restricted-vote republic and allowed only “free white persons” to be admitted to become citizens and to vote; otherwise, and by omission, allowing American industry access to temporary workers with no path to citizenship or the vote.
The communists (liberals, progressives, socialists, democrats, RINOs, AINOs) in America are flooding the whole world into America to overwhelm the once-solemn and important vote in order to abrogate the Constitution and impose the dominion of the Communist Manifesto and the “dictatorship of the proletariat.”
Jonathan: You are a great admirer of James Madison. Yet, in your admiration you completely ignore what he actually said about the meaning of “invasion”. In his “Report of 1800” Madison stated unequivocally: “Invasion is an operation of war. To protect against invasion is an exercise of the power of war”. Absolutely no one at the Constitutional convention or the state ratification debates used the word “invasion” to connote the peaceful movement (lawful or otherwise) from one country to another.
Whether in Article IV, Section 4 or under Article I, Section 10 the few court decisions on the issue have ruled that “invasion” refers to armed hostility or a military invasion. The 11th circuit said in Padvan v. United States (1996): “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”. In California v. US (1997) the 9th Circuit ruled: “California ignores the conclusion set forth by our Founders. 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”. No court has ruled otherwise.
Despite the bombastic claims of MAGA Republicans, by you and some on this blog, cartels do not “control” our southern border. No cartel mans official points of entry or any of the points in between. No cartel decides who and what is admitted into the country. The fact that cartels are forced to SMUGGLE drugs and people secretly demonstrates that cartels don’t control the border.
Frankly, I don’t think you are the Madison scholar you claim. Otherwise you wouldn’t ignore what Madison clearly stated about the meaning of the Invasion Clause. But this isn’t about constitutional scholarship. It’s all about politics—promoting the false claim by DJT and the Republicans this election year that the Biden administration is allowing “terrorists”, “rapists” and other criminals to enter the country. Yet the MAGA Republicans can’t cite one example of a terrorist who has slipped across the border and committed a terrorist act. Putting your column in the service of the MAGA agenda and ignoring what Madison plainly said does not seem to be the best way to promote constitutional scholarship!
What about irregular forces; can they “invade” or not?
Wordsmith lickspittles, arguing the meaning of IS to distract from the crimes committed. What’s the meaning of INVASION, how about mass ILLEGAL entry into a country? How about organized mass illegal entry into a Nation consuming billions of dollars and overburdening taxpaying citizens?
O T – Revisiting the Kavanaugh hearing, Mark Judge, a journalist, is quoted in saying that Demo operatives placed pressure on him to back up Ford’s account of an attempted rape by Kavanaugh when they were both in high school. See https://www.breitbart.com/politics/2024/03/27/mark-judge-democrats-used-extortion-and-direct-threats-to-pressure-me-in-destroying-brett-kavanaugh/
Notice that after Kavanaugh, the next GOP nominee was a woman. I predict that Scotus will eventually be all female. GOP nominees will have to be women because the Dems will keep inventing sexual misconduct to falsely pin on a male nominee, and (as recent history has shown) the Dems will only appoint women for affirmative action reasons.
The sensationalized sexual misconduct stories distracted everyone from the fact that Kavanaugh, during his time in the Shrub Administration, helped rationalize torture as an instrument of US government policy…
God love him for it!
Terrorists do not abide by the Geneva convention. Water boarding doesn’t maim an enemy combatant, torture does.
THE CURE THAT IS THE CURSE
The American fertility rate is in a “death spiral.”
More actual Americans die than are born.
America doesn’t need to fret over the future; there is none.
American women have focused on assuming the roles of men while shirking their natural duty to their country, which is making Americans in numbers sufficient to grow and protect the nation.
American women have become the men who will lead the nonexistent country.
The invading dependents and parasites will suck the host dry and kill the host, leaving said invaders with nothing but a vacuous carcass.
__________________________________________________________________________________________________________________________________________________
“That dudn’t make any sense.”
– George W. Bush
_____________________
By contrast, the American Founders understood the challenge and difficulty of obtaining the best possible freedom-based outcome for the United States through courage and resolve—by separating the wheat from the chaff.
Alas, it is gone; it is all gone.
Some of you are treading in very dangerous waters.
You criticize JT for “quibbling” about the meaning of “invasion.” (Though it’s beyond me how you know the meaning of a word without a proper definition.)
You claim, without proof, that “invasion” means whatever you feel it means.
You can’t define “invasion.” But you know it when you see it. (Which is, of course, completely backwards.)
You are playing exactly the same game with words that the Left plays with concepts such as “woman,” “insurrection,” “fraud.” And you are doing so for precisely the same purpose: As a means to justify an ends.
Whether you realize it or not — obviously NOT — you’re describing Turley, the host of this troll-infested wolfpack.
It sounds to me that the solution to this problem is to elect a proper federal government, Executive and Congress, that will deal with the serious problems this country faces. We cannot depend on the courts to solve this problem.
Nothing Turley writes matters anymore at this troll-infested crapsite, as all the regular trolls (“Well said”) show up daily to beat their own drums about whatever nonsense dribbles out of their drooling “brains” (for lack of a better word). Oh, the blessings of a no-rules “free speech” anarchy site.
Anonymous:
“Nothing Turley writes matters anymore at this troll-infested crapsite. … Oh, the blessings of a no-rules “free speech” anarchy site.”
******************************
And, of course, the right response to trolls is to totally ignore them and scross right past them. We all know their monikers. In their place, read Karen S, hullbobby, Cindy Bragg, Honestlawyermostly, Oldmanfromkansas,UpstateFarmer, S. Meyer, DarrenSmith, Iowan2, John Say, Margot, Steve Witherspoon, and my favorite constitutionalist, George, along with scads of other articulate commenters that I’m missing. (mea culpa) Even Prof David Benson offers thought-provoking stuff from the other side of the aisle.
Don’t engage with people you don’t respect in the first place. We’ve all violated this rule but it’s still a good rule. It’s worth pushing a little dung out of the way to get to the diamonds.
LOL LOL LOL — you named most of the trolls I’m referring to as the troll infestation. Most of these people have nothing to say, and worse, it has nothing to do with whatever Turley writes. These people (if they are people) are just sky screamers poluting what once was intelligent discourse with their own agendas. It’s hilarious that you promoted captain “Well said” as worthy of reading.
I’m sure there are lots of people strolling the Galleria dell’Accademia in Florence who can’t appreciate Michelangelo’s “David,” too.
“. . . people strolling the Galleria dell’Accademia in Florence who can’t appreciate Michelangelo’s “David,”
That is a great analogy!
If you can’t use a proper name, YOU are definitely a troll. Scat!!!
Mespo, thanks for the comment, thanks for the mention, thanks for making one of the gutless “Anonymous'” fools.
BTW, anonymous is an adjective and I can think of a few adjectives for these contrarian weirdos.
PS. Mespo, your list was right on the money, I enjoy everyone you mentioned. Well George can be a bit much sometimes, but his heart is in the right place. Also, please add Lin to the good list.
LOL — The long-time Mespo Troll’s list was right on the money when it comes to identifying Turley trolls that make this comment section the worthless intellectual desert that it’s become. You people are a disgrace to the human race.
HB:
A thoughtless omission wrought by my aging brain. Lin is must reading, as you say.
Mespo,
Well said. 😉
FWIW, my opinion on interacting with the shills/trolls here. It is answering whether a man should get married or stay single – that is, it is a strictly personal decision. So, here is why I stay away from women, I mean why I limit my interaction with the crazies here.
One, they (if not just one person behind it all) fall into one of three categories – paid shills or people who are not paid shills. The NOT paid shills, fall into two categories – liars or truth tellers, that is those who lie about what they believe, or who are telling accurately what they truly believe.
Two of those three categories are seldom worth me wasting my time on – the paid shills and the liars. A paid shill will not deviate from his script, and who knows the motivation of the liar? Are the liars just trolling to get a rise out of people, or are they mentally ill oppositional people, or cyber-stalkers. Whichever – conversation with them is like conversing with a shadow. You might as well argue with a chat bot. There are two exceptions to my usual routine of ignoring these two types – One, I am feeling mean (lack of sleep), and I want to say something mean to them, or something sarcastic. Two, they have presented a talking point, that an innocent reader here, might not know is incorrect. A good example was the “Now that Smirnov is kaput, the whole impeachment of Biden stuff is over.” No, that was false, but someone who reads casually here might not be aware of the actual state of affairs.
The third group, the people who come here, and really believe the DNC/Left line – there could be productive conversation there, if they were for real. But so far, I have not encountered but one or two who seem even marginally reasonable on occasion. Most simply regurgitate the party line, and do not seem open to any new ideas.
If these people, like DeMac for one, are honest, they are so far gone mentally, that it is almost cruel to try to reason with them, outside of a clinical scenario. What can you say about someone who votes for Democrats because it is a family tradition. And, why should you argue with someone who agrees with castrating young boys, and performing double-mastectomies on young girls. I suppose, if Joseph Mengele was here, on this website, and there was a chance of helping him see the error of his ways it might be worth a shot or two, but not much beyond that. Better, imho, to let him stew in his own evil and stupidity.
That is my two cents worth,
The Cartels in Mexico are in control of the Southern Border of the United States. Those on the Mexican side of the border need not wear any uniform as they are the de facto military emanating control of said border with no interference from the “official” government of Mexico.
The fact is those cartels have uniformed military uniforms complete with arms and ranks within their organization. No one is permitted to enter the US via the Mexican border can illegally enter the US Southern Border without their blessing. Those in Mexico from the cartels facilitating this invasion have no need to wear a uniform. Regardless they are part of an organization that do wear uniforms, are organized as a para militia based in Mexico.
They need not cross into our border in the fashion of a military invasion. They do well enough getting their people in that have a proven track record of sex trafficking of minors, extortion, drug trafficking and de facto control of many of our cities streets.
Whatever you would like to say about this….it is indeed an invasion.
Eric