Last week, the en banc Fifth Circuit resolved the buoy case. I am happy to pass on this guest post from Professor Robert Natelson, who co-authored an article on the war powers of the states.
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On July 30, the U.S. Court of Appeals for the Fifth Circuit ruled that the district court should not have granted the United States a preliminary injunction ordering Texas to remove a barrier lying in the Rio Grande River. The case was United States v. Abbott, and it was decided on the issue of navigability. However, the case also has implications for states’ power to wage defensive war—and particularly defensive war against illegal immigration.
Andrew T. Hyman and I recently published an examination of those issues in the British Journal of American Legal Studies. We focused mostly on Founding-era evidence of the kind probative of the Constitution’s original meaning. Our article played a role in the case—but, as described below, a rather unusual one.
The Parties’ Contentions
The State of Texas had placed a 1000-foot floating barrier in the Rio Grande near Eagle Pass, Texas, a busy border-crossing area. The state justified the barrier by invoking state war powers to stem an “invasion.”
The U.S. government claimed that Texas’s power to respond to the alleged “invasion” had expired. The government also maintained that the state right of self-defense had been qualified by the congressional Rivers and Harbors Appropriation Act of 1899, which forbids obstructing navigable waterways without federal consent. (The Constitution grants Congress jurisdiction over navigable waterways as a component of the Commerce Power.)
Texas countered that under traditional navigability tests, the Rio Grande was not, and never had been, navigable above the city of Roma, Texas—far downstream from the Eagle Pass floating barrier.
State War Powers
The Constitution granted federal officers and entities, as well as the government itself, certain enumerated powers. As confirmed by the Tenth Amendment, it reserved the remainder to the states and the people. Moreover, where the Constitution did not specify that federal authority was exclusive, the states retained concurrent, although subordinate, jurisdiction.
Among the concurrent powers reserved to the states was the prerogative of making war. However, Article I, Section 10, Clause 3 limited that prerogative considerably:
No State shall, without the Consent of Congress . . . keep Troops, or Ships of War in time of Peace . . . or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
In international law terms, Congress could authorize state participation in offensive war. But states retained unconditional power to wage defensive war.
As our study pointed out, this clause retained a balance between federal and state war-making that was approximately the same as that prevailing under the Articles of Confederation.
But only approximately. The Constitution added one further constriction and four expansions of state war powers. Specifically, the Constitution (1) denied state power to issue letters of marque and reprisal—an additional restriction on offensive war but (2) discarded the former limitations on states’ ability to wage defensive conflicts.
The Constitution also granted the federal government supreme power to regulate immigration (Article I, Section 8, Clause 10). However, states also retained subordinate concurrent power over that subject. This was recognized in the portion of Article I, Section 9, Clause 1 that referred to free migration as opposed to the importation of slaves: “The Migration . . . of such Persons as any of the States now existing shall think proper to admit . . . .”.
Mr. Hyman and I investigated the Founding-era meaning of “invasion” and “invaded” to determine if, as three U.S. appeals courts have opined, those terms were limited to formal attacks by foreign military forces. We found they certainly were not. Both 18th century dictionaries and contemporaneous usage supported definitions broad enough to encompass peaceful but unauthorized cross-border incursions that resulted in damage. For example, in the years before the Constitution was written, both Benjamin Franklin and Pennsylvania officials referred to a peaceful but unauthorized wave of immigration into their state as an “invasion.”
We also learned that during the Founding era, migrants entering a country illegally were considered, or treated as, “alien enemies.” They were not accorded the same rights as “alien friends.” It made no difference whether an illegal migrants’ country of origin was friendly or hostile.
Finally, we examined Founding-era international law to determine the sorts of tools a sovereign may use to fight a defensive war. Not surprisingly, these included barriers to thwart invaders.
So based on our findings, it appeared that Texas was on sound constitutional ground when invoking its defensive war powers to justify building a barrier—at least until one considers the Rivers and Harbors Appropriation Act.
The Court’s Decision
Under that law, if the Rio Grande is “navigable” at the point where Texas constructed its barrier, then a conflict arises between congressional exercise of the Commerce Power and state exercise of defensive war powers.
In United States v. Abbott, the court avoided that conflict. In an opinion written by Judge Don R. Willett, the court concluded that the Rio Grande was not navigable in the area of the barrier, because the river above the city of Roma had never been a “highway of commerce.” Although there was some evidence that a ferry had crossed the river near Eagle Pass, Judge Willett held that ferries crossing rivers merely cover gaps in land routes. A ferry may indicate that a lake is navigable, but “Lakes are obviously not rivers.”
Chief Judge Priscilla Richman concurred in the decision, but would have left open the possibility that adequate proof of a ferry route could show navigability.
Judge Ho’s Opinion
Judge James C. Ho wrote a concurring-and-dissenting opinion focusing on the state right of self defense. He argued that the U.S.
The government’s request for a preliminary injunction should have been dismissed on the grounds that when a state, acting in good faith, declares it has been invaded and exercises its war powers, the legality of its decisions becomes a non-justiciable political question.
The Supreme Court precedent and longstanding Executive Branch practice confirm that when a President decides to use military force, it is considered a non-justiciable political question that is not subject to judicial reversal. There is no principled basis for treating such authority differently when invoked by a Governor instead of a President. In fact, a State’s authority to “engage in War” in response to an invasion “without the Consent of Congress” is even more explicitly stated in the text than the President’s authority.
Judge Ho’s view emphasizes that decision-making in good faith is a prerequisite to non-justiciability. This aligns with the analysis presented in the article, which emphasizes that terms like “insurrection” and “invasion” trigger both the federal government’s duty under the Guarantee Clause and the exercise of state war powers. The article argues that if these terms are too vague for federal courts to define, then they are also too vague for state courts to define, making them non-justiciable political questions.
The article asserts that judicial intervention is warranted only when federal officials neglect their duty or adopt measures that demonstrate a lack of good faith effort. It also questions whether a federal law conflicting with the right to state self-defense could take precedence over that right, as self-defense is inherent in state sovereignty.
In terms of dissenting opinions, Judge Higginson argued that ferry traffic across a river could demonstrate navigability, while Judge Douglas maintained that ample evidence had been presented to show that the Rio Grande near Eagle Pass was navigable. She also contended that once Congress has the opportunity to respond to an invasion, state war powers cease.
However, the article contradicts Judge Douglas’s conclusions by stating that under the Constitution, states have more flexibility in engaging in defensive land war compared to the Articles of Confederation. It also points out that the Constitution removed the Articles’ requirement of consulting with Congress before engaging in war.
In conclusion, the article provides a thorough analysis of the legal issues surrounding state war powers and the justiciability of political questions related to invasion and self-defense.
Please rephrase.
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