WASHINGTON—On Friday, the Immigration Reform Law Institute (IRLI) filed a brief in the full Fifth Circuit Court of Appeals, sitting en banc, 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 Appropriations 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 a three-judge panel of that court held that the floating barriers violated the Rivers and Harbors Act, though it remanded the war issue to the district court.
At this point, the full Fifth Circuit granted review of the case en banc. This action vacated the panel’s decision, leaving the full court to decide the case afresh.
IRLI’s en banc brief has two parts. First, it shows that the issues of 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.
In its brief, IRLI also explains how Texas’s war on the cartels—a heavily-armed, foreign criminal organization—relates to the state’s placement of floating barriers. In a word, the barriers, and other efforts by Texas to secure its border, are a war strategy to prevent or deter the entry of foreign nationals from around the world who pay the cartels to smuggle them into the country, and thereby at once to prevent the criminal acts of the cartels, reduce their material support, and diminish the human flood in which they conceal their further criminal activities, such as drug smuggling.
“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 Administration 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).
