Biden Tries to Halt Texas’s Self-Defense—in Court

August 15, 2023

IRLI shows clause of Constitution letting invaded states “engage in War” should be allowed full effect

WASHINGTON—Today, the Immigration Reform Law Institute (IRLI) filed a brief in a Texas federal district court in a case that, for the first time, puts at issue a constitutional provision that allows states to go to war if they have been invaded.

Section 10 of Article I of the Constitution states that, “without the Consent of Congress,” states may not “engage in War” unless they have been “actually invaded.” Texas Governor Abbott, declaring that Mexican drug cartels have invaded his state without meaningful opposition by the federal government, has taken his own steps to defend Texas, including placing floating barriers in the Rio Grande to block illegal crossings into the state.

The Biden Administration responded by suing to stop Abbott. It seeks an injunction ordering Abbott to remove the barriers, on the basis that he has put them there in violation of a federal law, the Rivers and Harbors Act of 1899.

In arguing that the Rivers and Harbors Act cannot stop Abbott’s war effort, IRLI makes three points. First, IRLI shows that two questions—whether a state has been “invaded,” and what steps a state considers appropriate to repel an invasion—are committed to political actors (here, Texas) by the Constitution, and also that courts lack manageable standards with which to rule on these questions. Thus, these two matters are what the law calls “non-justiciable political questions.” The court should not try to answer them, but leave that to Texas.

Second, IRLI points out that, if invaded, states may go to war “without the consent of Congress.” Thus, a congressional enactment such as the Rivers and Harbors Act should not be read to block Texas’s war effort. Rather, to give Section 10 full effect, conflicting federal laws should be viewed as displaced by a valid exercise of a state’s constitutional war power.

Third, IRLI notes that what the Rivers and Harbors Act does in particular is make Texas ask the Army Corps of Engineers to “authorize” its barriers. In thus requiring states to get federal consent to a war measure, the Act, as applied to this case, violates Section 10, which allows states to make war “without the consent of Congress,” let alone the Army Corps of Engineers.

“War is serious business, and the Constitution gives states direct power to declare and make war if invaded,” said Dale L. Wilcox, executive director and general counsel of IRLI. “We assume Texas is just getting started—and the judiciary is not the appropriate branch to second-guess its judgments going forward. We hope the court stands aside, and sees that the Constitution frees Texas from any need to go hat in hand to a federal agency for permission to defend itself when the federal government will not.”

The case is United States v. Abbott, No. 1:23-cv-00853 (W.D. Tex.).

Photo credit: Texas Department of Public Safety