Fifth Circuit to Rule on Texas’s Border Law

Press Releases

March 19, 2024

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

WASHINGTON—Yesterday, the Immigration Reform Law Institute (IRLI) filed a brief in the Fifth Circuit Court of Appeals supporting Texas’s new law protecting its border in cases brought by the Biden Administration and activists to strike down the law. The consolidated cases put front and center 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 from around the world, 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 U.S. 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.

Another measure in this war is SB4, a new Texas law that allows state troops to apprehend illegal border crossers and take them to the border. These border crossers fund the cartels by paying them to traffic them into the country, and their massive numbers allow the cartels to operate undetected.

In response, the Biden Administration, and also an anti-borders activist group represented by the ACLU, went to court to block the law, claiming it is preempted by federal law under a Supreme Court precedent. They succeeded in the district court, which issued a flawed decision enjoining the operation of the law. As IRLI shows in its brief on appeal, no one brought up states’ war powers in that Supreme Court case the plaintiffs rely on, and the Court’s ruling does nothing to restrict them. IRLI goes on to show that, given these powers, the questions of whether Texas has validly declared war and whether its chosen means of waging war are appropriate are both nonjusticiable political questions, meaning they should not be decided by courts, but by the political branches of state government. 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. “In this unprecedented situation arising from the federal government’s abdication of its duty to protect states, the judiciary is not the appropriate branch to second-guess how a state may protect itself. We hope the court rules these lawsuits non-justiciable and orders them dismissed on that basis, leaving Texas free to turn back an invasion the federal government has not only not opposed, but actually invited.”

The cases are United States v. Texas and Las Americas Immigrant Advocacy Center v. McGraw, No. 24-50149 (Fifth Circuit).

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