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.
Imagine if, instead of bombing, sanctioning, doing regime changes, etc.
We spent that time and money helping other countries (and our own).
Would there be such a problem as there is now? Would there ever be?
I remember when nearly all entities in the United States was patriotic.
If Biden is re-elected, an independence movement in Texas will grow. I, for one, would let them leave the union since the union has deserted Texas. They were an independent country at one point and joined the union on the implicit understanding that the federal government would assume the role of protecting its borders, As Justice Jackdon said, the Constitution was not intended to be a suicide pact.
Congress needs to pass legislation to improve the situation at the border. The right wing extremist party who only cares about being in power, and not governing, has prevented this from happening on multiple occasions.
I’m glad that even the 5th circuit understands the constitutionality of the issue and ruled accordingly. I’m not happy with the situation at the border but glad the right wing extremists are disappointed in their federal courts, even with all the Federalist Society Trump appointees on board.
You, the right wing extremists, secessionist, traitors, brought this all upon yourselves.
New laws are not needed. Only the willingness to enforce existing laws is needed.
“Congress needs to pass legislation to improve the situation at the border.”
You mean what Biden did via Executive Orders (some 16 of them), he can’t undo via Executive Orders?
In the famous decision of Texas v White by SCOTUS in 1869, the Court held that, legally speaking, Texas was and remained a state of the United States ever since it first joined the Union in 1845, despite it later purporting to join the Confederate States of America and despite it being under military rule at the time of the decision in the case. The Court further held that the Constitution did not permit states to unilaterally secede from the United States, and that the ordinances of secession, and all the acts of the legislatures within seceding states intended to give effect to such ordinances, were “absolutely null”.
In private correspondence, it has been reported that Justice Scalia weighed in on the matter of secession. In paraphrasing Scalia, he felt that if there was ANY issue solved by the Civil War it was that the states had no ability to secede. In my opinion, this denial of the right to secede was not so much because of Texas v White and any interpretation of the Constitution that forbade it in 1869, but because it was an issue decided by war in 1865. The Union victory in the War of the Rebellion made no other outcome possible in Texas v White.
The question is not whether Texas has a right under current jurisprudence to secede. Th S. Ct. would rule that it does not have the right to secede. But legal changes can be made by action. If Texas decides that it must secede, and organizes to do so, will American armed forces move to stop Texas? Conservatives should agree among themselves that Texas should have the right to secede if the virtual invasion of its border is not stopped. If we can come to such a consensus, chances are good that the power of the federal government would not be used against Texas. Or, at least a constitutional crisis would be created where Democrats would be forced to abandon their policy of free admission into our country.
jajuan62 said: “unilaterally”
That is the big word to me in what you wrote. Do you think that would preclude a State from petitionng Congress for secession? If that conversation got started, there is no telling where it might lead. If discussion was refused out of hand, it could provide at least moral justification for an outright declaration, i.e., “we made a reasonable request to discuss the future of this relationship, and it was arbitrarily refused”. If Fedgov deigned to participate, I’m pretty confident that it would make completely unreasonable demands for the right to secede. That in itself could fuel the discussion in other States about the legitimacy of the Union. I’m convinced that the US is in the process of making a radical departure from what it has been, at least from the common perception of what it has been, to an outcome that is, as of now, very much undetermined. Decisive actions now could have a great deal of influence on the direction that departure takes.
There is absolutely no doubt that the federal government would act to squash any attempt on the part of Texas (or any other similarly situated states) to secede. In the decision Texas v. White previously mentioned, Chief Justice Salmon P. Chase wrote that when “Texas became one of the United States, she entered into an indissoluble relation”. He also stated that “The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States”. This case essentially affirmed that the United States was ‘an indestructible Union, composed of indestructible States’. The decision declared that secession was illegal and that the bonds between the states were unbreakable.
The federal government would rely on this decision to deny any attempt by Texas to secede. Yes, I believe the president would immediately federalize the Texas NG to deny the governor access to these forces. He would warn Texas that their efforts to secede would be opposed not just legally, but militarily if need be. Having fulfilled the requirements of warning Texas to cease and desist, the president would invoke the Insurrection Act of 1807 (the law that President Jefferson signed way back when). The Insurrection Act supercedes the Posse Comitatus Act of 1878, and active-duty forces could then be used to put down insurrection/rebellion. Texas has 15 active-duty military bases comprising nearly 175,000 troops which would all be placed on “prepare to deploy orders”. The Texas Capitol and Governor’s mansion would be surrounded, and the DOJ would have arrest orders in hand for the governor, lieutenant governor, and attorney general. You could bet that portions of the State would be placed under martial law. The Texas State Militia does not have sufficient numbers to oppose federal forces in Texas — especially when neighboring states’ federalized National Guard forces are also sent into Texas. I’m sure the Congress would also suspend the writ of habeus corpus in Texas for the duration of the conflict.
All this carries the potential of being a bloody affair, and it would take someone with the strength and leadership of Lincoln to prevent or repulse. The problem is, we don’t have anybody vying for the Oval Office that has the “cajones” to prevent it.
No offense to the legal community, but great offense to the judiciary. To Hell with the courts. The nation IS being invaded. The People have a right to resist the invasion. The States are the mechanism of The People. For a judge, or a panel of judges, to deny The People protection and Justice is an abomination. This is not a game! It’s not an academic exercise! It’s a matter of national survival! Again, to Hell with the courts!
Very well said Clarke!
It’s up to the courts to interpret the laws, not pass them. That responsibility lies with congress. The hard right wing wackos in congress won’t do their job.
Don’t believe me? Ask Sam Lankford. Or is he just a RINO too?
Here’s a thing that itself speaks – “or in such imminent Danger as will not admit of delay.” So it doesn’t have to be the exact, technical definition of an “Invasion” (and note that “invasion” isn’t preceded by “armed”).
And, this is the perfect reason to make sure the judges we put in at every level are NON-PARTISAN! Or, at the very least prevent partisan decisions to go through!!!!
Our Constitution was made only for
a moral and religious people.a people that want it to limit the power of government to securing the rights of our citizens. It is wholly inadequate to the government of any other.“…any lack of border security could be defined as an invasion, from illegal drug imports to illegal gang activity.”
And after the last 40 years, why, exactly, would that be a problem?
Don’t expect a lot of change in Texas. Everyone is very well aware that the Federal government controls the borders and immigration policy. Whether the Fed is acting in good faith or not is the question. Did you notice that when the court ruled that Texas couldn’t obstruct the border with its string of buoys on the river, that nothing happened? The Biden administration made not one move to remove it. Think of the incredibly bad optics in an election year. The same factor will control this issue. The Biden admin may win in court but they will be too timid to take advantage of it. This issue is a complete loser for them, no matter what the courts say, or if they win or lose.
Be aware that IF AND WHEN Jeffries becomes Speaker he WILL push through the Lankford Immigration Bill. It will be added to an immigation measure the Senate passed weeks ago. Further amendments will be added to include nearly every Illegal that ever crossed our borders anytime.
That Bill will be on Biden’s desk for his signature before the end of April 2024. 1,830,000 green cards MINIMUM for “Migrants”–effectively Open Borders.
Additionally 50,000 Visas for “employment” per year.
Oh, anyone illegally in will be made an Instant Citizen.
Biden will sign it. Before the end of April. Speaker Jeffries and Senator McConnell will stand beside each other—beaming and smiling!
The “Invasion Theory” will be in NYC today at Radio City Music Hall.
Featuring moderator Steven Colbert, some old geezer named Joe Biden & drinking buddies, Barack Obama & Bill Clinton, aka Slick Willy.
$500,000 a pop money beg DNC fund raiser. Better known as punking for pesos.
* SECURITY COMMENTARY – I’m sorry, this is a full-fledged invasion, the clause is fulfilled, because the majority come armed and are criminals.
The crime rate has gone down in Venezuela. Do you know why? Venezuelan gangs are all operating up here right now,”
1- A Haitian Immigration Chaos History Lesson for President Biden
________________________________________________________
The History of the invasion, sorry “the Haitian migration” to the US. from 1980 to present. An account of how each government collapsed trying to prevent mass migration. From Ronald Reagan to Biden.
– Until Guantanamo Collapse!
*In the first three weeks in May 1992 alone, the Coast Guard intercepted 127 rickety vessels carrying 10,497 illegal aliens,
*Under this program, 85,300 Haitians were granted parole in the United States from January to September of 2023.
* As of March 2023, over 116,500 Haitian natives are covered by Temporary Protected Status, allowing them to work in the United States without fear of deportation.
**Furthermore, on May 17, the Biden administration updated its review process for managing, stating that “The U.S. government may grant advance travel authorization to up to 30,000 noncitizens each month to seek parole ….”
– Haitian,
– Cuban,
– Nicaraguan, and
– Venezuelan arrivals,
https://www.dailysignal.com/2024/03/27/a-haitian-immigration-chaos-history-lesson-for-president-biden/
—————————————————————————————————————–
2024
2- Democrats blocked a bill that would have stopped U.S. taxpayer dollars from flying illegal immigrants into the United States.
_____________________________________________________________________________________________________________
A-) In 2023, 320,000 illegal migrants were flown into the U.S. using this method under the Biden administration.
– “You’ve got Venezuelans that are being put on charter planes, all courtesy of U.S. taxpayer, U.S. government, U.S. taxpayer dollars and flown
into America,”
B-)These people are being collected by the U.S. government and flown directly from their countries of origin. I’m talking about flying them in here from
– Colombia,
– Venezuela,
– Nicaragua,
– Haiti
C-)- Emphasizing that these individuals are not crossing the border but flooding over into “43 different airports here in America.”
https://www.breitbart.com/politics/2024/03/26/exclusive-sen-bill-hagerty-democrats-blocked-bill-to-stop-taxpayers-from-flying-illegals-into-u-s/
Reality check. https://youtube.com/shorts/vwEtYUSgVlI?si=KFmoGKSpYX7lpS0k
This is how to do it, Ron DeSantis Signs Bill That Takes Sledgehammer To Squatters’ Rights
“A TikToker recently went viral for telling illegal migrants how to use squatters’ rights to steal Americans’ homes, and there have been reports of squatters in states like New York. DeSantis said this new legislation will speed up and simplify the process to remove squatters from homes during a press conference on the bill in Orlando.”
https://dailycaller.com/2024/03/27/ron-desantis-signs-bill-that-takes-sledgehammer-to-squatters-rights/?utm_source=referral&utm_medium=offthepress&utm_campaign=home
Influencer Who Advised Illegal Migrants To Steal Americans’ Homes On Run From Immigration Authorities
TikToker is going viral by telling illegal immigrants how to “invade” homes in America thanks to progressive squatting laws
Remarkable.
“We can invade a house in the USA, what do you think about this new law?” a video from one TikTok user read.
The man said he has African… pic.twitter.com/b92DT9fYq7
— Collin Rugg (@CollinRugg) March 20, 2024
https://dailycaller.com/2024/03/27/tiktok-influencer-leonel-moreno-advised-illegal-migrants-steal-americans-homes-on-run-from-immigration-authorities-report/?utm_source=referral&utm_medium=offthepress&utm_campaign=home
States focus on squatting as TikToker encourages illegal immigrants to ‘invade’ homes
“Occupy Your Neighbors: Florida and Georgia have passed legislation to protect property owners from squatters while a woman in New York City was arrested for trying to keep a squatter out of her family’s home.”
https://justthenews.com/government/security/states-focus-squatting-social-media-influencer-encourages-illegal-immigrants
Thanks Upstate! Florida does it right under DeSantis.
hullbobby: will be closing soon on some nice property in steinhatchee. (but I won’t be there full-time for awhile.) Maybe some day our paths will cross, but we won’t know it unless JT is to speak at a college somewhere in the area, ha ha
Lin, lunch will be on me.
UpstateFarmer said: “This is how to do it, Ron DeSantis Signs Bill That Takes Sledgehammer To Squatters’ Rights”
In Florida, that has potential synergy with this 2022 advice from Santa Rosa County Sheriff Bob Johnson on handling home invasion:
“Johnson also encouraged other residents to follow in the homeowner’s footsteps and take gun safety classes, adding that they are “more than welcome” to shoot anyone who is breaking in to their house.”
Florida sheriff says homeowners are ‘more than welcome’ to shoot intruders
https://www.foxnews.com/us/florida-sheriff-promotes-gun-safety-course-residents-shoot-home-invaders
Yes, squatting and home invasion are clearly treated differently by the law, but they do have in common a total disrespect for a home owner’s property rights. A little righteous fear induced by knowing that some invaders met their fate at the point of a homeowner’s firearm might go a long way toward counteracting that disrespect.
If the Supremacy Clause leads to field preemption which nullifies another part of the Constitution, then this foreign invasion, and the border states’ inability to do anything about it, show that John Adams was right when he said the Constitution is “wholly inadequate” for a nation governed by amoral, corrupt, irreligious men and women. John Adams, “Letter from John Adams to Massachusetts Militia,” 11 October 1798
You’ve got to be kidding. This is an organized invasion and any sentient person hasn’t far to look to verify it. The invaders may not be armed but they have been conscripted, organized, abetted, and funded to at least a minimal degree. That the may not be obviously armed, we know in fact though that some are and some are finding and possessing arms after their illegal entry with intent to use same. QED
Bus the illegals into the neighborhoods and recreation centers of 5th Circuit ‘justices’. A busload of them should be acompany every brief submitted on this issue. They shouldn’t be exempt from the chaos they inflict on the rest of the country. They like ’em they can have ’em.
Probably the Ivy Leagues have room for a lot of them too.
We don’t have a system of law it seems. We have small islands of it in an expanding sea of chaos.
Young said: “Bus the illegals into the neighborhoods and recreation centers of 5th Circuit ‘justices’.”
Interesting idea. Hmmmm. What about busing a crapload of them to the Capital Building and getting them inside in a manner (sort of) reminiscent of 1/6/2021? Let’s see how the a$$hats like it (and react to it) then ;-/
Nonsense. If we can find a right to abortion and gay marriage in the penumbra, we can find a solution for the states to deal with the millions of illegal military aged men pouring across the border. Invasion can mean whatever we want it to mean. I am told the Constitution is a living and breathing document that was apparently written on an Etch-a-sketch.
Texas should ignore the ruling. Period. Molon Labe!
As expected, the 5th Circuit is arguing semantics. In every realistic sense, millions of illegal aliens pouring over your border IS an invasion.
In every realistic sense, millions of illegal aliens pouring over your border IS an invasion.
It is, at least to the state of Texas who’s being invaded. If we had a federal government interested in securing the rights of our people and our states over the “rights” of foreigners and other countries, then we’d have a functioning constitutional republic. While it might seem like a “semantic” battle over the language in the constitution, this is actually another front in the federal government’s war against our Bill of Rights.
What is so amazing is that anyone with a modicum of love for their country would vote for Biden/Obama.