Fifth Circuit to Rule on Texas Self-Defense Case

October 2, 2023

IRLI shows Texas’s war on the cartels should be free from judicial meddling

WASHINGTON—The Immigration Reform Law Institute (IRLI) recently filed a brief in the Fifth Circuit Court of Appeals in a case that, for the first time in history, puts at issue a constitutional provision that allows states to go to war if they have been invaded.

A state of war exists in Texas. The enemy are Mexican cartels that control the Mexican side of the border and run massive numbers of foreign nationals, and massive quantities of drugs and other contraband, into Texas and other states. Governor Greg Abbott declared the war under Section 10 of Article I of the Constitution, which states that, “without the Consent of Congress,” states may not “engage in War” unless they have been “actually invaded.” Steps Abbott has taken to wage this war to date include placing floating barriers in the Rio Grande to block invaders, and people who fund the cartels, from entering the state.

The Biden Administration responded by suing to stop Abbott. It sought and got a preliminary injunction from a district court 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. IRLI had filed a brief in the case defending Texas’s right to self-defense, but the district court, while discussing IRLI’s brief at length, woefully mischaracterized both it and Section 10.

Texas appealed the district court’s interference with its war effort to the Fifth Circuit, and that court granted a stay, or suspension, of the injunction pending appeal. The court then fast-tracked the appeal, ordering an extraordinarily compressed briefing schedule on its merits.

IRLI’s brief on those merits has two parts. First, we show that whether Texas has validly declared war, and whether its chosen means of waging war are appropriate, are both non-justiciable political questions, meaning they should not be decided by courts, but by the political branches of government—here, Governor Abbott. Then IRLI shows that Texas’s valid exercise of its power of self-defense, which flows directly from the Constitution, overrides any conflicting federal laws for the duration of the conflict.

“War should not be decided in courtrooms, 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 how it defends itself. We hope the court rules this Biden lawsuit non-justiciable and orders it dismissed on that basis, leaving Texas free to turn back an invasion the federal government has invited and scarcely opposed.”

The case is United States v. Abbott, No. 23-50632 (Fifth Circuit).