Constitutional Law, Courts, Politics

Don’t Mess with Texas: Fifth Circuit Rules Against the Biden Administration in Buoy Dispute on Southern Border

Texas won a big victory in the United States Court of Appeals in the long struggle over floating buoy barriers in the Rio Grande River to help block unlawful migration. In United States v. Abbott, the court ruled 11-7 in an en banc decision against the Biden Administration over the barrier. It is an interesting decision that included a sharp disagreement over the claim that the large numbers of migrants across the border constitute an “invasion” under Article I, Section 10, Clause 3 (“[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”).

In its challenge, the Biden Administration claimed the placement of the buoys  violated the Rivers and Harbors Act of 1899. The appellate panel and trial court previously  ruled in favor of the federal government. However, both were overturned.

The majority found that the specific stretch of the Rio Grande that was chosen by the state is not covered by the Rivers and Harbors Act because it is not “navigable.” The definition of navigable waters has long been a matter of dispute in the courts.

Yet, it was the invasion issue that had many of us watching for this decision. I have previously expressed doubts over this theory. I agree with Texas on its criticism of the Biden Administration’s disastrous handling of the border. The impact on Texas is devastating. However, I do not believe that it qualifies as an invasion under Article I.

The opinions deal with this issue in dicta rather than the central holding. Some judges felt that the court should have addressed the issue.

What is interesting is the concurring opinion of Judge James Ho that the meaning of “invasion” is a “political question.” As such, he believes that courts must defer to the Texas governor’s assertion that there is an invasion, at least so long as the governor is acting in “good faith.”

In his concurring opinion, Judge Andrew Oldham maintains that Ho is wrong about the necessity of the court in taking up the issue.

In her dissenting opinion, Judge Dana Douglas objects that this approach would have sweeping and destabilizing effects and “would enable Governor Abbott to engage in acts of war in perpetuity.”

Here are the opinions: United States v. Abbott

344 thoughts on “Don’t Mess with Texas: Fifth Circuit Rules Against the Biden Administration in Buoy Dispute on Southern Border”

  2. I am still waiting for just ONE of you libtards to explain to us what a black job is.

    Svelaz-George, Gigi, Dennis, Lawn Boy?

    Please, you can use your own definition, or the one you think Trump meant.

    Lets hear it. You claim the term is racist. Lets hear why?

    When you are done defining it, then please also explain it in the context of illegal immigration, since thats when it was used.

    We all eagerly await.

    1. entry level unskilled jobs or semiskilled jobs where the majority of the population is black, aka the same areas where the illegal aliens are being housed. inner city in ‘sanctuary vities’

    2. Any job black people can, would, might, are, should, could do, are doing, have done within the American economy not distinguished from white jobs past, present or future but excluding other groups for targetted speech purpose and that illegal immigrants, migrants, aliens, tourist but not limited to that definition would , have, are taking jobs from Americans including black Americans at a lesser wage or salary .

    3. Thank you all but I would specifically like the libtards definition. So far, I have seen nothing racist in your descriptions.

      1. Oh, it was misread. Libtard definition of black jobs. A black job includes slavery and illegal immigrants having little to none documentation and fear for deportation will work for food or work and not paid. Illegal immigrants are doing black jobs as slaves of white people.

        Libtard definition.

      2. Another of the common left wing nut Tactics – Joe Biden can say I will only pick a black women for vice president or Supreme court.

        But if a republican say anything using words that can be construed as three levels removed from race – that is racism.

        The hypocracy is so think you can cut it with a spoon.

        We were told repeatedly that DEI was not real, that is was not about race. That is was not a fig leaf for affirmative action and reverse discrimination.

        And then black journalist dare Trump to use the phrase DEI Hire – despitre the fact that is precisely what Democrats WANT – is lots of DEI Hiring, Because to call someone a DEI hire is racist.

        You can not have it both ways – DEI – and the use of DEI in hiring is either a good thing – and you are prepared to own it and proudly defend it, or it is a bad thing – and you should quit trying to inflict it on us all.

    4. Ah, it must be racist. Is it the separation of these are black jobs and these are white jobs and not just jobs?

      So explain it.

    5. Government jobs dude
      Where there is zero accountability and you can’t be fired.

    6. The term is absolutely racist. There is no such thing as a black job. It implies that black folks only have or can have certain jobs in American society. Trump’s usage in the context of illegal immigration furthers this inference because it draws a connection to the idea that a “black job” is only one that can be obtained by Trump’s understanding of the jobs obtainable by the migrants, in contrast with jobs he thinks are more appropriate for other racial groups.

      I’m not sure what you are trying to prove…

  4. Isn’t an “invasion” led by a government’s army, that then tries to take over the government and take/hold territory?

    If the Mexican army invaded Texas in order to control that government and territory.

    Migrants trespassing in order to obtain a paycheck and support their families is not an invasion. There is no government led army trying to take and hold territory.

    1. That is one meaning, but not the only meaning. The dictionary has this example: stadium guards are preparing for another invasion of fans (definition: an incursion by a large number of people or things into a place or sphere of activity”). Yet another is “an unwelcome intrusion into another’s domain” (example: random drug testing of employees is an unwarranted invasion of privacy). The real question is what the Constitution means by it.

      Also, you reduce your own credibility when you pretend to know that all such migrants only want “a paycheck and support their families.” First, there is no way for you to know that; second, there have been reports of other reasons for the migration, including that some are terrorists who have now been arrested.

      1. What do the “history and traditions” of the Framers tell you? Is that what they meant by invasion? Are you a supporter of originalism/textualism?

        The constitutional text undermines the idea that “invasion” includes illegal migration and smuggling. The Invasion Clause relied on by Texas allows states to “engage in war” in response. That suggests an “invasion” must be the kind of organized assault that would normally justify full-scale war in response, including sending troops to attack and occupy the country from which the invasion originated. Illegal migration and smuggling do not qualify as such under international law, either today or at the time of the founding of the United States.

        The Guarantee Clause of Article IV of the Constitution 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.” Here, invasion is paired with “domestic Violence”—which in 18th century usage refers to uprisings against the state government, not the modern use of the term to denote violence in family and intimate relationships. Under the long-standing doctrine of noscitur a sociis, “a word may be known by the company it keeps.” Here, it makes little sense to assume that “invasion” includes nonviolent actions, when it is coupled with “domestic Violence.”

        The original meaning reinforces the text. As legal scholar Frank Bowman notes, “[T]hroughout the Constitutional Convention and the state ratification debates that followed, delegates and commentators used the term ‘invasion’ over and over” in ways that, with rare exceptions for “metaphorical” uses, “invariably refer… to a hostile armed incursion into or against the territory of the states or the nation.”

        In his Report of 1800, James Madison, one of the leading framers of the Constitution, responded to claims that the Guarantee Clause authorized the notorious Alien and Sedition Acts of 1798 by emphasizing that “[i]nvasion is an operation of war,” and thus the Clause does not authorize restrictions on immigration. The same logic applies to the use of “invasion” in Article I. Efforts to use other statements by Madison to support Texas’s position ignore the one time he specifically addressed the meaning of “invasion” and misinterpret those other statements, to boot.

        There is some founding-era evidence suggesting that a relatively small invasion might have been enough to trigger the Invasion Clause. But a small invasion must still be an armed attack. Moreover, the possibility that a small invasion is sufficient for a state to qualify as “actually invaded” further undercuts Texas’s argument. If illegal migration or drug smuggling are invasions triggering the power to engage in war in response, and even a small invasion qualifies, that suggests that even small-scale illegal migration or smuggling would be sufficient to enable a state to wage war without congressional authorization. Such an absurd implication goes well beyond the ordinary meaning of the terms and certainly was not expected by anyone at the time of the founding.

        1. A lot of text to deny that the Constitution can possibly have meant any other type of invasion than an organized army led by another nation’s government. But the clear purport of the constitutional provision is to promote the physical security of the state. If that security is substantially threatened by an invasion which doesn’t fit your description, I would think the constitutional provision was still intended to apply.

          1. Do you have evidence to support that the original meaning of “invasion” referred merely to any treat to the “physical security of the state”? Perhaps a treatise on the “invasion” of hurricanes or early immigrants to 18th Century America?

            Or did you just make this up?

            1. I didn’t say that was “the original meaning of invasion.” In fact, I quoted two dictionary definitions of invasion. Admittedly those were from today’s dictionary. The Noah Webster dictionary of 1828 defined it generally as “A hostile entrance into the possessions of another.” It gives a more particular example as the entrance of a hostile army. But the definition is not limited to that example.

              What I said about the constitutional text, is that it was evidently designed to protect the physical security of the state (“. . . unless actually invaded, or in such imminent Danger as will not admit of delay”). So my proposition is based on the phrase “actually invaded” when viewed in the context of the whole clause, which includes “imminent Danger.” But lets suppose I’m wrong, and that the framers intended the word “invaded” to be construed narrowly. Does it even make a difference — seeing that that phrase is followed by “OR in such imminent danger as will not admit of delay.” Clearly that contemplates virtually any kind of danger, whether it be from an organized foreign army or not. Do you disagree?

              1. No.

                Art I. Section 10. Clause 3 of the Constitution: “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.”

                You intentionally left out the rest of the sentence, which speaks rather specifically to war and peace. The dependent clause, “Unless actually invaded, or in such imminent Danger…” qualifies the final clause in the list of the preceding independent clause. That clause lists:
                (1) lay any Duty of Tonnage
                (2) keep Troops or Ships of War in time of Peace
                (3) enter into any Agreement or Compact with another State or foreign power; or
                (4) engage in War.

                The “unless actually invaded, or in such imminent Danger” clause must be understood as an EXCEPTION to “engage in War.” If the exception were to apply to activities other than war, then it would have drafted differently to make that meaning explicit. But, they chose this construction intentionally, and any other interpretation makes a mockery of textual analysis.

                Don’t take my word for it. Take Scalia’s. This is known as the Proviso Canon. A proviso conditions the principal matter that it qualifies – almost always the matter immediately preceding.
                https://www.law.uh.edu/faculty/adjunct/dstevenson/2018Spring/CANONS%20OF%20CONSTRUCTION.pdf

              2. “Hostile” has various meanings , as well. A new religion can be hostile to the smooth functions of an existing culture. Invasive, unwanted, unnecessary, altering etc.

          2. And further, oldman, if you have no EVIDENCE of history and tradition, then originalism is completely fictional. To be the rigid discipline it purports to be, the judge must remove what he thinks “the Constitution can possibly have meant” and insert what the Founders ACTUALLY SAID AND DID. Citation to original sources is key.

            Otherwise, originalism is just as farcical as the “emanations and penumbras” that made Roe a prime, activist example of judicial lawmaking.

            Your lack of evidentiary basis for “invasion” is, at best, an invasion of your own politics.

            1. If forced to choose between originalism and textualism I’d take the latter. When the text is ambiguous, resort to the original intent is then a valid method of statutory construction in resolving the ambiguity. But there is a difference between construction and interpretation. Interpretation can be undertaken to arrive at the text’s meaning without finding an ambiguity – such as looking to context. That’s what I’m doing here. Regardless, I’d like to hear what you have to say about the “or” clause I pointed out above.

              2. And to clarify, your “or” clause is part of the “unless” proviso. Think:

                It reads: “unless actually invaded, or [unless] in such imminent Danger.”

                If “or” was an entirely different independent clause, then that would signal to the reader that it is a separate concept.

                For example, if it read: “…unless actually invaded, or/yet a State may protect itself if it is in such imminent Danger.”

                1. You totally ski over the qualifying nature and meaning of the word “such” in this clause.

                    1. I agree-I only pointed it out to you because you are too dense and defensive to see that you passed right over the most obvious disposition.

                    2. I agree with you about the proviso. But I don’t agree that that implies the invasion must be by an army commanded by a foreign government. The framers could easily have made that narrow meaning clear but they insisted settled on the terms “invaded” and “imminent danger”. The only qualifier in the text is “not admit of delay “. You’re reading in additional qualifiers that don’t appear in the text. Because, again, I believe the text itself is paramount, I’m not convinced you’re correct.

                    3. If you agree about the proviso, then the words of the proviso necessarily qualify the subject of the immediately preceding clause, which was specific to engaging war.

                      If you say: “I will go with you to France, unless you make me sit in economy,” what does the proviso mean? Is it specific to the flight to France or does it mean that I won’t ever fly in economy?

                      Greater detail specifying it to France is not necessary. The phrase is necessarily limited to trips to France. I could be fine flying in economy on shorter flights.

                      This is the same principle.

                    4. So your theory is that a state cannot “engage in war” except with an army under the command of a foreign government? I’m not so sure. I think Israel does it all the time to take one example. But let’s suppose you’re right. How does that constrain Texas in its efforts to stem the tide of illegal immigration? Isn’t Texas still allowed to take actions through force of arms that do not rise to the level of engaging in war?

                    5. The shadow government hidden within the Biden regime is foreign. Your government has been seized by a foreign from within.

                    6. No that’s not at all what I said. The qualifier is engaging in war. When did I say it has to be with a foreign government?;A militia such as a terrorist group could easily be considered engaging in war (as the term was understood by the founders).

                      This clause does not apply to immigration. Full stop. Because migration is not war.

                    7. But under an extreme movement of immigration including violent armed cartels controlling large parts of the border and the movement of foreign terrorists across the border … couldn’t the state’s reaction involving force of arms be considered war?

                    8. And you didn’t answer my other question:

                      But let’s suppose you’re right. How does that constrain Texas in its efforts to stem the tide of illegal immigration? Isn’t Texas still allowed to take actions through force of arms that do not rise to the level of engaging in war?

                    9. Your argument keeps changing… But no the invasion clause applies to war, not a commercial enterprise like human trafficking or illicit drug trafficking, which is the purpose of the cartel.

                      An armed truck protecting a shipment of goods is not war. It is security for the commercial enterprise.

                      And no, immigration law is federal, and our constitutional structure does not allow TX to supersede federal law. I didn’t answer your tangential question because it is irrelevant to interpretation of this clause of the Constitution.

                    11. And to clarify, in response to: “Isn’t Texas still allowed to take actions through force of arms that do not rise to the level of engaging in war?”

                      Yes, of course. But that is not the case here. Abbott literally invoked this provision of the Constitution and acknowledges that the State’s actions amounted to war.

                  2. To your other question…”How does that constrain Texas in its efforts to stem the tide of illegal immigration?”

                    It constrains Texas in its efforts to stem the tide of illegal immigration to the extent that such actions amount to engaging in war.

                    The Supremacy Clause obviously has additional constraints on a state’s ability to “stem the tide of illegal immigration” to the extent such stemming conflicts with federal immigration law.

                    Does that make sense?

                    1. Oldman, this is how a textualist has to read this clause.

                      If you are trying to think about this issue from a functionalist perspective, then you are not a textualist. Despite being a self-proclaimed textualist, these questions are decidedly functionalist.

                      A textualist does not allow practical considerations (i.e., if that’s the reading, what can TX do?) to color clear textual meaning.

                      But, there are other options for TX instead of making a mockery of the invasion clause. For example, Texas can work with other states to ratify a constitutional amendment to provide for more control over immigration.

                    2. Oldman, you write: “it is a physical impossibility for a state to “engage in war” unless the other side is also engaging in war, ”

                      I am not sure what you mean by that. The threshold question is whether Texas can engage in war without the consent of Congress. TX says it can due to its broad interpretation of “invasion” in the proviso. Strict textual interpretation of the proviso, on the other hand, clearly suggests otherwise.

                      Under this constitutional provision, a state may only engage in war without Congressional authorization, if the “invasion” pertains to war. An invasion of bees does not count. An invasion of migrants does not count. An invasion of armored trucks sneaking into TX to sell cocaine does not count. An organized militia attacking the State Capitol in Austin TX would count. Under a strict textual analysis that relies on the Proviso Canon, this is the only way to interpret this proviso.

                      From a real world perspective:

                      1. Constitutional Amendment: As mentioned previously TX can work with 37 other states to ratify a constitutional amendment, if it feels it needs more power vis-a-vis immigration issue. I believe at least 25 GOP governors could be swayed to come to its aid, so this is not that far-fetched an idea (though personally, I think this could cause lots of problems).

                      2. Bully Pulplit: TX can use the bully pulpit (as it has done) to try to sway public opinion towards its position at the federal level.

                      3. State Law Enforcement: It can increase law enforcement activity within its borders, provided this does not conflict with federal immigration law enforcement. In addition to the TX National Guard (which Biden could call into federal service if he wanted), federal law permits states to maintain a separate state guard (here, the Texas Guard). Abbott’s use of the Texas Guard to help secure the southern border in ways that are consistent with federal immigration law aligns with how both federal and state law envision governor may use such forces.

                      4. Support from Other States: It can continue to work with other states (like FL) to share the burden of Operation Lone Star, provided it does not violate EMAC.

                      5. Other services, like social welfare services to remedy non-criminal issues that arise from migration over the border.

                  3. My other question was: But under an extreme movement of immigration including violent armed cartels controlling large parts of the border and the movement of foreign terrorists across the border … couldn’t the state’s reaction involving force of arms be considered war?

                    If so then imminent danger that will not admit of delay is a valid prerequisite to Texas “engaging in war.”

                    1. I answered this question. Migration and illicit commercial activity, regardless of how violent they are, are not war. The purpose of the conflict is key.

                      The constitutional provision requires a military invasion or imminent danger as a result of act of war (as discussed at length given the construction of the proviso), and therefore the prerequisite of the proviso is not met.

                      Therefore the State cannot engage in War without the consent of Congress.

                      You said above you understood that the proviso has to qualify the immediately preceding clause. That means that both “actually invaded” and “imminent danger” must relate to war.

                      Migration and illicit commercial enterprise are not war.

                    2. To clarify, if the state reacts to non-war (i.e. migration, cartels) by engaging in war, and it does do without the consent of Congress, then it violates this constitutional provision.

                      Does that make sense?

                    3. Old man, I appreciate the back and forth. I wanted to see if you had a response though…

                    4. Okay, I think I understand your position: it is a physical impossibility for a state to “engage in war” unless the other side is also engaging in war, which you interpret to exclude violent cartels and invasion by terrorists. Although I respectfully disagree, I admit your position is not unreasonable. That may be an interpretive issue SCOTUS will ultimately need to resolve.

                      The second point, if I understand it, is that the practical considerations of what Texas can constitutionally do are irrelevant to a textual analysis. I totally agree with that as far as it goes. But the reason I was asking the question, was not in service of arriving at an interpretation of this particular constitutional text. I was just wondering from a real-world perspective what you thought of whether – completely apart from US Const. art. I, §10, cl. 3 – Texas can do anything about the invasion at their border?

          3. The invasion led by the shadow government is far more sophisticated than mere armies and guns. The constitution can expand to include the current invasion and toppling of the government.

      2. She was being an innocent libtard with the paycheck rhetoric. It was the humbug part.

      3. “. . . not the only meaning. [. . .]

        Your arguments turns on an equivocation.

    2. Also, by trivializing the problem (they’re only looking for a paycheck to support their families) you overlook that that takes jobs away from law-abiding Americans, and it also puts downward pressure on the wages of the lowest economic class. The American government’s job is to take care of Americans and enforce the immigration laws, not discard Americans’ interests in favor of those who would break our laws to enter illegally.

      1. OldManFromKS,
        I would add these illegals are taking resources away from legal citizens. They come in, tax the system, taking advantage of the system. As we have seen them then make more demands while giving nothing in return.
        We need to look more at them like an invasive species, that overwhelms an ecosystem for their own benefit while destroying the ecosystem.
        I would call that an invasion.

        1. That’s true too Upstate. Biden/Harris are cynically trying to expand their own voter pool even if it means destroying America. That’s how vile they are.

        2. In some cases the illegals are being lured here to be kidnapped, sold, trafficked, robbed, without a way to return home. If it’s illegal there’s nothing good about it. As Biden exclaimed, SURGE! Where are the missing children?

          Lured with the big words of the greatest nation. There’s a price for lying.

      2. ” The American government’s job is to take care of Americans.”

        You sound like an extreme liberal. Even JFK disagreed with this. Ask what you can do for your country. My how the right has changed into support for a Christian nationalist nanny state. Perhaps I am stuck in the limited government glory days.

        1. What utter and complete nonsense. The government’s laws, and the enforcement of those laws, are always supposed to support the safety, health, and welfare of the people being governed. That includes criminal laws, laws regulating the security of the country, and laws concerning the economy. None of that has anything to do with whether it’s a “nanny state.”

        2. And wait, “Christian nationalist”? That came out of the blue. Do you suffer from Christian derangement syndrome?

        3. “Perhaps I am stuck in the limited government glory days.”

          No you’re not, Lawn Boi. The other day you were a Reagan conservative.

          Every day you pretend to be something new. What you really are is a low IQ douchebag who thinks he is clever.

          News flash: you’re not clever. You just look like a booger eating troll.

    3. how do you know an appreciable amount of the reported 10 Million illegal crossings- just say as low as 1 million of the 10….are in fact agents of a foregin government or terrorist entity- and in fact plan harm on the state of TX and their government and theor people- there is no way you can state to me you know the answer to this postulation. Even if the numbers are say 100,000 illegal crossings- and 1000 of them plan such an act- the FACT here is illegal crossing is illegal crossing.

    4. Well yes, you’ve hit on something. The invading army is being controlled by a government. That government is the Biden regime.

    5. Yes, it’s the Biden regime toppling the American government and intending to remain in power forever.

    6. “Isn’t an “invasion” led by a government’s army, that then tries to take over the government and take/hold territory?”
      That is ONE definition.
      Invasion has been historically for centuries used to refer to an unwanted influx of something that is not native in large numbers.
      The invasion of spotted lantern flies.
      Invasive species.
      The invasion of products from china,
      The British invasion of Rock and Roll in the 60’s.

      I share your sympathy for those coming here just to get ahead to build a better life for their families.
      I would like to exchange them for the over privileged students in our ivy league schools.

      There are still about 750million people globally that want to come to the US to live – and that number would likely grow the more plausible doing so became.

      In the real world – we must make choices.

      I own an apartment building. Periodically I have apartments to rent – do I rent them to the poor single mother trying to take care of her child – who does not have a fraction of the income needed to pay the rent and who will either be evicted in short order, or become charity on my part that I can not afford, Or do I rent to the person who can actually pay the rent ?

      In the real world we do not magically get to kiss everything and make it better.

      Further – while immigration – even mass immigration is NET positive for the US – NET is not the same as ALL – there are definitely bad impacts of immigration for many people – and those people are voting for Trump.

      At the same time it is NEGATIVE for the countries these immigrants are coming from.
      Except for those cases where we grant political asylum – and possibly not even those cases,
      We are taking from another country the people who are most likely to make that country better.

      The left likes to rant about privilege – if you are an american – you have won the privilege lottery.
      Being Poor in the US is better than being middle class in most of the world.
      You did not earn that – it is a privilege

      And whether you like it or not you are in the position where you must make choices that will protect the benefits of that privilege for those who live here, extend them a bit to a few who do not, or extend that privilege to ever larger groups, to increasing hard to those already here.

      Being an adult requires making difficult choices. Not pretending we all live in Shangrala.

  5. When the most common sense, basic societal protections are debated the great and mortal threat to America continues unabated.

  6. Whatever happened to the immigration law of the American Founders—their country, their law, their people?  
    ______________________________________________________________________________________________________________________

    Naturalization Acts of 1790, 1795, 1798, and 1802 (four iterations for maximum clarity)

    United States Congress, “An act to establish an uniform Rule of Naturalization,” March 26, 1790

    Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof…

  7. Judge Dana Douglas: “would enable Governor Abbott to engage in acts of war in perpetuity.”

    The only act of war is the invasion across our border orchestrated and conducted by the Biden Administration against the United States of America. If the Republicans had any cojones they would have impeached Biden long ago.

    1. Albert, lets do a sports analysis fact check

      Ukraine vs. Israel. Put points on score board

      Israel killed about six bad guys, OK. Ukraine killed more field marshals & Russian Generals.

      Putin is running out of Generals & is threatening to use nukes if conventional weapons don’t work.

  8. Professor Turley,

    This was a review of the District Court’s preliminary injunction. The standard of review is ABUSE OF DISCRETION. That standard is exceedingly high for factual inquiries (“clearly erroneous”). The Fifth Circuit’s citation for the standard was NOT for preliminary injunctions, however. It cites United States v. United States Gypsum Co., 333 U.S. 364 (1948) and Clark v. Mobil Oil Corp., 693 F.2d 500, 501–02 (5th Cir. 1982) (per curiam). NEITHER of these involved a preliminary injunction.

    The finding of fact – whether the waterway is navigable under the RHA – must be reviewed for clear error. The factual findings at the preliminary injunction stage are less formal and the evidence is less complete than a trial on the merits. The US put forth studies from the Army Corps and Coast Guard as well as US-Mexico Treaties that described this area as navigable. In addition, there are plenty of historical references to the commercial use of this stretch of the Rio Grand for foreign/interstate commerce. Additionally, and perhaps most obviously, the whole purpose of this obstruction was to block illicit commercial enterprise coming from Mexico (whether drugs/human trafficking etc.), which necessarily requires navigating this stretch of river.

    Finally, and SCOTUS determined in United States v. Rio Grande Dam & Irrigation Co. back in 1899 that the Rio Grande up to New Mexico is “navigable.” This is CONTROLLING precedent.

    The Opinion spends ample time trying to parse these particular sources to demonstrate that their factual findings were limited to some extent. But this is not its job. It should have let the trial court make this determination as it is the best arbiter of findings of fact. There was NO clear error here.

    What a shame. Judicial activism on the right is just as bad as activism on the left. Originalism appears only to be a tool used when politically expedient.

  10. More headlines I love.
    Good old JD, takes credit for something he, nor trump, had anything to do with.

    “JD Vance credits Trump for prisoner swap Biden negotiated”

    Yea, I want a lying SOB to be my next VP.

    1. Do you have some facts to support your claim ?

      We have an anonymous poster, making a claim about a headline from an unknown source, about an unknown event.

      Could you have a more FACT FREE POST ?

      It is this nonsense that is why most people not only do not beleive the left, they just ignore the left.

      2. I’m glad someone found the link for you. But I am not surprised you wouldn’t know how to do a simple search. We all know that nobody is allowed to show more intelligence than the orange felon god. So Yep, act dumb, Felon trump loves you for it

        1. Lawn Boi, don’t vote for Vance. No one gives a fvck who you waste your vote on.

          do those boogers taste good?

    2. JD gave his spin:

      “But we have to ask ourselves, why are they coming home? And I think it’s because bad guys all over the world recognize Donald Trump’s about to be back in office, so they’re cleaning house. That’s a good thing, and I think it’s a testament to Donald Trump’s strength.”

      You’re shocked, shocked! No other politician in history has ever spinned an event in their favor, particularly not in the middle of an election campaign!

      Hahahahaha!

      1. I don’t know about you, but a politician trying to mislead the electorate by saying that this had anything to do with him is a problem.

        Perhaps you’ve become inured by the travesty that is our current political landscape?

        Does he provide evidence that Putin did this BECAUSE of Trump? He didn’t quote Putin? Is his opinion based on anything concrete, or is just complete BS? You tell me.

        Come on, don’t try to act like this is absolutely heartbreaking.

        1. I think most of what most politicians say is BS. But I know the difference between an assertion of fact and the ordinary activity of spinning. If you can’t tell the difference then I suppose you will be equally disgusted with Biden, Harris, and any other Dem politician who do it all the time, not to mention flat-out lying. To pick this one relatively innocuous (and transparent) spin by JD as somehow breaking all norms is absurd.

          1. Yes, I am equally disgusted by Biden, Harris and other Democrats. I am not a partisan. Some of us are free thinkers.

            But, accepting this as the norm is not the solution. You should demand better from your politicians rather than try to justify it with both sideism. No?

            1. To me it’s not that big a deal. I know when someone’s spinning and shrug it off. JD was clearly just giving his opinion, which I disagree with (as do you), but I don’t see why it’s such a grave problem when there are thousands worse problems in society.

              1. Or do you?

                Your post below: “Most are just passing through. Before long you may find them sleeping on your lawn, committing violent crimes in your community, or conspiring with others to commit terrorist acts in your state. You should be thankful to Texas for its efforts to prevent all that.”

                https://www.reuters.com/world/us/trump-focuses-migrants-crime-here-is-what-research-shows-2024-04-11/

                “Migrant crime” is complete spin. Yet, you seem to drink that right up.

                1. Stop pretending you aren’t a sycophant, troll. Do those boogers taste good?

            2. “I am not a partisan. Some of us are free thinkers.”

              Right. the other day you were a “Reagan conservative”.

              You’re a booger eating troll.

        2. Did Biden have proof that he “inherited” 3 of these 4 hostages from the previous administration?

          I doubt it, since its false.

          STFU

    5. Ok, lying SOB is ok, But a guy that doesn’t think cat ladies should be allowed to vote? That is taking it too far.

      1. What he said was that the cats should vote in their place. But I’m against cats driving cars, especially when they’re near catnip or coughing up a hairball.

    6. You had one in Harris. So, what is your point? She lied about being black when in fact, she has no black blood in her ancestry at all. She lied about being the “little girl” on the bus when in fact, she went from kindergarten through high school in Canada. She didn’t attend public schools in the states at all. She boasted time and time again about being the first female of Indian ( India) heritage to win a seat in the Senate. When confronted with the truth about her experience she claims, all she does is stonewall and never gives a truthful reply. Instead of an SOB, is she a DOB?

  11. It’s the 5th circuit. They have a terrible record of being overturned by SCOTUS. The 5th circuit seems to have avoided fully defining “invasion” which would have undermined Texas argument. The original intent behind “invasion” meant as in armed military invasion. Not people simply crossing over the border and seeking asylum. Even Turley has doubts about the 5th circuit’s definition of “invasion”.

    Texas has not shown how it is imminently in danger or how it’s harmed by immigrants crossing over and seeking asylum. SCOTUS may once again overturn the 5th circuit’s decision.

    As for the “navigable” issue. That section IS navigable according to Texas.

    “Navigable Waters in Texas

    Navigable waters, or a navigable stream, are defined as waters subject to the ebb and flow of the tide or having possible use for transport.”

    The section in dispute IS navigable by airboat as the rest of the river is. That area of the river is deep enough and wide enough to support airboats, canoes, Kayaks, and jetskis. Furthermore, historically the rio Grande has been used by the confederates to ship cotton and other products. It Is still considered a navigable waterway. Just because one section is not when the water is low does not mean it is not navigable permanently. The 5th circuit did not fully consider the issue purely for political expediency.

    1. George, you fixate on original intent regarding invasion – and then use a definition of navigable that is not in the constitution and has nothing at all to do with the meaning according to those who wrote the constitution.

      Airboats and jetskis did not exist in 1787.
      Further Navigable at that time did not mean something that you could traverse in a Punt or canoe or kayak.

      It meant waterways that were used for heavy commerce.
      As you note the confederates used parts of the rio grande to transport Cotton – that is the navigable waters.

      The expansion of the term navigable is just another left wing nut effort to evade the constitutions very limited federal powers.

      I would further note that the constitution did not give infinite jurisdiction to the federal government over navigable waters.
      It gave jurisdiction over their navigation and commerce of navigable waters.

      I agree that mass illegal immigration does not meet the original intent of invasion.

      It does easily meet “in such imminent Danger as will not admit of delay”

      Further the constitution is a contract betweent he states and the federal govenrment.
      By willfully failing to enforce properly passed laws regarding the border and immigration the Federal government is in breach of that contract – the constitution.

      2. John: the Supreme Court held way back in 1874 actually held specifically that canoe-based commercial travel can justify a finding of navigability.

        The Montello, 87 U.S. 430, 441-42 (1874). In that case, the Court held that early fur trading using canoes sufficiently showed that the Fox River was a navigable water of the United States. The Court was careful to note that the bare fact of a water’s capacity for navigation alone is not sufficient; that capacity must be indicative of the water’s being “generally and commonly useful to some purpose of trade or agriculture.” Id. at 442.

        Perhaps, try again?

          1. Not sure the purpose of this response. John say writes above that canoes cannot justify navigability. SCOTUS says otherwise. Pretty clearly inaccurate.

      3. Why would “navigable” be in the constitution? Perhaps you should look at the statutes regarding the border, treaties, agreements. Not everything has to be in the constitution for the court’s to determine legal questions and definitions.

        “Airboats and jetskis did not exist in 1787.
        Further Navigable at that time did not mean something that you could traverse in a Punt or canoe or kayak.”

        Try later. During the civil war era. Commerce was conducted using the rio grande as way to transport goods. Because back then the river was not used heavily for irritation and drinking water as it is today. It was certainly navigable.

        “I would further note that the constitution did not give infinite jurisdiction to the federal government over navigable waters.
        It gave jurisdiction over their navigation and commerce of navigable waters.”

        But it does give jurisdiction over international BORDERS which includes bodies of water on the that make up the border including waters stretching 15 miles offshore from the mainland. That’s federal government jurisdiction.

        “The expansion of the term navigable is just another left wing nut effort to evade the constitutions very limited federal powers.”

        No. Texas’s own definition of navigable waters includes rivers and streams where small craft can be used.

        The constitution is NOT a contract between the states and the federal government. It’s the supreme law of the land. The federal government is not willfully failing to enforce properly passed laws. Republicans REFUSED to pass a law that would have addressed the issue after they first agreed to it. It was only after Trump told them to reject the idea because it would give Biden too much credit. Republicans and democrats were in agreement until Trump told them to renege on the deal.

        What imminent danger do the states face? You agree that the term invasion means armed military conflict by the founders. The imminent danger meant states facing foreign armies. Not people crossing over to seek asylum.

        1. Svelaz-George the pathological LIAR

          Republicans REFUSED to pass a law that would have addressed the issue after they first agreed to it.

          You are the bidggest goddam liar on the planet.

          House Republicans PASSED a BILL (its called a bill, not a law, idiot). Its called HR2. Thats LIE number 1.

          “Republicans” never “agreed” to a fvcking thing. What are you even talking abot? Just making shit up again. Thats LIE number 2.

          Nearly every GOP senator, along with six Democrats, voted to filibuster a bipartisan bill designed to crack down on migration and reduce border crossings.—-NBC

          SIX DEMOCRATS voted against it. LMAO you can’t get all the Dems in line, you KNOW the bill is SHIT!
          LIE #3

          Why isn’t the truth good enough for you, Svelaz? Why do you have to make up lies every day?? Are you proud of that?

          1. By the way, George and NBC, with a combined IQ of 100, a “bipartisan bill” is one that passes CLOTURE, not one that a couple of idiots signed onto in exchange for a favor.

            1. By design, EVERY proper law is “bipartisan”. Because it passes CLOTURE in the Senate.

              The only ones that arent are the ones Democrats ram thru under “reconciliation” and cause record inflation.

        2. “Not people crossing over to seek asylum.”

          George the retard still acts like he thinks people are coming here for asylum.

          Are you that stupid, or do you just pretend tho be?

    2. My feelings on Roe vs Wade….its the only two ways migrants can cross the river

      —Svelaz-George the spastic complainer

    3. Yes, the definition was and is armed invasion just as the stage coach once delivered mail. It’s more sophisticated now.

      Muskets were once in vogue, too.

  13. Would it be different if the cartels were actually crossing the river and planting people to do their bidding in violation of the law?? Immigration Law and criminal laws.

    THAT would indeed be an invasion under any rational definition.

    Well, guess what? That’s exactly what’s happening.

    1. If that’s happening , then the Rio Grande is a navigable river. So, its a catch-22. The 5th Circuit Opinion is non-sensical. There is no rational explanation for saying (a) it is NOT navigable; and (b) it is an invasion of people and illicit commercial activity.

      That defines logic.

  14. I think everyone is on the wrong track with this. It should be clear that the current administration is not just failing to faithfully enforce much if not all of federal immigration law, but is actively refusing to enforce those laws. Texas should argue that in regard to such a situation the Supremacy Clause of the Constitution is at least temporarily inoperative until the administration or a new administration resumes faithfully enforcing them again. With the Supremacy Clause not controlling the issue, then the Tenth Amendment would permit Texas to do what they need to do in this emergency. Once the administration begins faithfully enforcing the law again, then it would shift back from the Tenth Amendment to the Supremacy Clause and I’m sure Texas would happily yield to the federal government. It should be just that simple.

    1. So Texas would argue the Supremacy Clause doesn’t apply in the present circumstances because it’s inconsistent with the Spirit of Aloha?

      1. No they would argue – correctly that the constitution is a contract between he states and the federal government, and that in willfully failing to enforce federal laws that the federal government has breached the contract – violated the constitution and that TX is then free to remedy that.

        I would further note that the supremacy clause is NOT a real issue here. The supremecy clause means that WHERE the federal government has jurisdiction – Federal law Trump’s State law. It does not bar states from passing laws identical to federal law and enforcing those laws so long as they do not interfere in federal enforcement of the federal law.

        The supremacy clause does not mean that the Executive can use the existence of federal law that it willfully refuses to enforce to prevent states from enforcing the state equivalent law.

        Put differently – there is zero doubt that Federal Lw trumps state law in the domain of federal constitutional powers.
        But federal executive policy to ignore federal law does not trump state law.

        1. Wait, are you saying the Supremacy Clause is still in force but it doesn’t prevent Texas from taking the actions in question, or that the Supremacy Clause is suspended under the circumstances?

          1. This discussion is both incorrect and irrelevant.

            If the Constitution’s Supremacy Clause means anything, it’s that state law can’t be used to defeat a legitimate federal law enforcement function. If a state can unilaterally determine that the federal government isn’t enforcing federal laws up to its (meaning, the state as determinant) liking, then you have no Supremacy Clause, obviously.

            The stupid concurrence from Judge Ho runs somewhat parallel to this interpretation. Judge James Ho argues that the court should have addressed the invasion argument. He contends that the meaning of “invasion” is a “political question” that the judiciary is not permitted to address. Other courts that have ruled that invasion is a political question have simultaneously concluded that the matter is left up to the federal government (while, in several cases, also simultaneously concluding that illegal migration does not qualify as invasion). Judge Ho, however, argues that courts must defer to the Texas governor’s assertion that there is an invasion, at least so long as the governor is acting in “good faith.”

            This theory has breathtakingly awful implications. It implies a state governor can declare the existence of an “invasion” virtually any time he or she wants, and then “engage in war” in response—even without authorization from Congress. Moreover, Ho argues the governor can continue military action indefinitely, even if the federal government has had time to consider the situation, and opposes the state’s actions.

            The “good faith” restriction is not much of a constraint. Political partisans can persuade themselves that almost any interaction with foreigners they find threatening qualifies as an “invasion.” If illegal migration and drug smuggling qualify, why not economic competition (many “national conservatives” view imports as a national security threat)? Why not supposedly harmful cross-border cultural influences (dangerous foreign ideas and art forms are “invading” our people’s minds!)? And that list can easily be extended.

            If this conclusion were required by the text and original meaning of the Constitution, perhaps there would be no way around it. But that isn’t so.

            If you are an originalist, you should be appalled by Judge Ho.

            1. As you are not an originalist, you cannot say what one should think.

              Spastic idiot. Have another sip drunktard

                1. And you don’t know what that means, clearly. Thats the point.

                  Sorry it went over your head.

    2. Good point. The feds go under for some reason calls every state into defensive action. It’s clear the feds are deliberately ignoring lawful immigration and for purpose.

      I have no sympathy for Republicans . They didn’t try to right the course. The democratics have systematically collapsed the government, the nation and Europe.

  15. Jonathan: Need any further evidence that DJT is really “weird”? Yesterday, DJT sat down for an interview at the National Assoc. of Black Journalists Convention in Chicago. And he displayed his “weird” racist views in front of the 3 Black women interviewers and the entire audience.

    ABC’s Rachel Scott began the interview by asking DJT why he made false statements about Obama and Nikki Haley–claiming they were not born in the US. Instead of thanking the hosts for the invitation DJT began this way: “I don’t think I’ve ever been asked a question in such a horrible manner. First question, you don’t even say ‘hello’, ‘how are you’?” Then turning directly to Rachel Scott DJT asked: “Are you with ABC? Because I think they’re a fake news outlet”. Disrespect and condensation are hallmarks of DJT’s style!

    Then, DJT was asked why his campaign refers to Kamala Harris as a “DEI hire”–which she clearly is not. This was DJT response: “I’ve known her [watch those pronouns Donald!] a long time…and always of Indian heritage, and she was promoting Indian heritage. I didn’t know she happened to turn Black, and now she wants to be known as Black Indian. Or is she Black?” I watched that part of the interview very closely. As DJT spoke the word “Black” twice at the end of the sentence he leaned forward toward the audience and almost sneered. It’s pretty clear. DJT does not like Black people.

    But we knew all of this about DJT’s racist views for a very, very long time. His campaign, however, has tried to portray DJT as a friend of the Black community–renting a Black church in Detroit, “hanging out” at a Bodega in the Brooklyn, etc. The interview at the NABJ yesterday destroyed that entire effort.

    DJT and his “weird” campaign advisors made a huge mistake by letting DJT speak to the NABJ and repeat his racist rhetoric. And it came just 95 days before the election! And no doubt the Harris campaign will use the NABJ interview to remind voters for the next 94 days that DJT is not only a “convicted felon” but an unrepentant racist! And, some “weird” heads at the RNC will probably roll for their disastrous political calculation!

    1. Dennis how is this different from the nonsense you posted yesterday – it appears to be a direct word for word cut and paste of yesterday’s post.
      Are you sufficiently lacking in creativity that you can only plagarize yourself ?

      Regardless this entire post was effectively refuted bit by bit yeasterday, by myself and many others.

  16. The border between Texas with Mexico is approximately the same distance as New York City to Kansas City. I lived on the border in the late 1970s on Del Rio. I have also visited many of the little towns on both sides of the border. Del Rio (as are most border towns) is over 90% Hispanic and Del Rio and other small communities like it were once a small, quiet communities.

    Now such places as Del Rio are focal points of massive crossings where the numbers coming in are larger than the population.

    Regarding Texas, there are as many Hispanics as there are any other cultural group. It is a place that is easy to do business, there is no income tax, there is no tax on medical goods, and there are wonderful communities throughout the state. The stereotype from years gone by has long since changed.

    It is the right of the citizens of state of Texas to protect themselves from the overwhelming crush of humanity and the irresponsible policies of the Biden (Harris) administration. The numbers are now approaching 10 million people.

    All services have been overrun. Try getting an examination with a doctor now. Try getting an appointment with a specialist. You will wait for months and sometimes close to a year.

  18. The “or in such imminent Danger as will not admit of delay” seems to me to be sufficient to allow TX to act – even if they are not being invaded, and even if this violates the federal rivers and bridges act.

    I do not think that what constitutes an invasion is a political question.
    I also think it is absurd to claim that defending a border is the same as committing acts of war in perpetuity.

    Texas has absolutely no authority to commit actual acts of war PERIOD. The language of the clause is defensive not offensive.
    But Texas has the absolute right to defends its external borders from external dangers without the permission of the federal government.

    As a separate matter – I hope that SCOTUS further narrows the “navigable waters” nonsense – as that has been a source of no end of egregious extension of federal power.

    1. Kamala doesnt support border control anymore than crime control. For her entropy is welcome, no rules, no constraints, embrace the Freudian id. By extension that means she and her low testosterone acolytes embrace extinction of our race. It is a thermodynamic, equilibrium thing. Uncontrolled entropy results in chaos. “Progressivism” = no self-control, feed the carnal appetites, give the middle finger to reason.

      Lead us into temptation, and deliver us not from evil
      – Progressivism / Left Wing dogma

      Kamala Harris praised ‘defund the police’ movement in June 2020 radio interview

      “We need to have this conversation and critically examine and understand this is not working,” Harris said on “Ebro in the Morning.” “It’s not working. So, this is an important conversation and not just a conversation – cause to your earlier point, can’t just be about talk. It has to be about forcing change.”

      “And this is why, you know, I was out there with folks and we’ll, any movement, any progress we have gained has been because people took to the streets,” Harris added.

      https://www.cnn.com/2024/07/26/politics/kfile-kamala-harris-praised-defund-the-police-movement-in-june-2020/index.html

      It appears Secret Service is providing Kamala an all male escort, far exceeding the # of SS agents that Trump ever had. It would show integrity if Kamala would live by her own rhetoric, lose the SS agents, and do her day to day errands, tasks and public appearances solo without any law enforcement anywhere near her. What does she fear?

        1. Putting a 10% tax on all incoming imports to the United States is further leftwing than anything on that list.

  19. Indeed states have the right to protect themselves. Must remember that it was the States that created the federal government, not the other way around.

  20. Dear Prof Turley,

    Why anyone, foreign or domestic, would want to break *into* Texas is beyond me. I spent some time working on the oil/rig refineries around the Houston area. It wasn’t a pretty sight.

    There must be more here than meets the eye.

    1. Most are just passing through. Before long you may find them sleeping on your lawn, committing violent crimes in your community, or conspiring with others to commit terrorist acts in your state. You should be thankful to Texas for its efforts to prevent all that.

      1. All of that is (illicit) commerce (drug trafficking / drugs) using the navigable waters of the Rio Grande at Eagle Pass, is it not? The whole reason for the barrier was to stop the “invasion” from happening? How then could the 5th Circuit say the District Court committed clear error by finding that the waters are potentially navigable? It blows my mind.

      2. How many are sleeping on your lawn?

        How many illegal aliens have conspired to commit terrorist acts in Kansas?

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