The border crisis is real, but the Constitution, as interpreted by the Supreme Court, forbids states from interfering with border control or immigration.
The border crisis is real, but the Constitution, as interpreted by the Supreme Court, forbids states from interfering with border control or immigration.
A s conservatives reel from Republican failures at the ballot box, some now may compound their loss by betraying their commitment to the Constitution. They have the best of intentions: to secure the lawless southern border. But relying on claims that the surge of illegal aliens amounts to an “invasion” to justify a state’s use of military force distorts the Constitution, upsets the proper balance between federal and state power, and starts a dangerous game that could result in violence. All of this is at stake in Texas governor Greg Abbott’s remarkable decision to deploy the Texas National Guard to cope with the flood of illegal aliens pouring across the border.
Abbott has good reason. President Joe Biden has allowed the southern border to fall into chaos, with 2 million illegal aliens crossing into the United States in the past year. This record-breaking surge has imposed heavy costs on communities in Texas, Arizona, and California, created a route for the trafficking of people and drugs, and led to thousands of deaths of migrants at the crossings.
President Biden undoubtedly bears heavy responsibility for this failure. Our constitutional system has recognized for almost 150 years that protecting the sovereign territory of the nation falls within the responsibilities of the federal government. Article I, Section 8 of the Constitution grants Congress authority to “establish a uniform Rule of Naturalization,” and the Supreme Court has recognized the federal government’s inherent powers of national sovereignty, such as conducting foreign relations, protecting the national security, and controlling the border. In a series of immigration laws, Congress ordered the executive branch to detain aliens entering the country illegally, provide hearings for those claiming political asylum, and to remove those without valid grounds to remain in the United States.
But pressured by the extreme left of the Democratic Party, the Biden administration has adopted policies that only encourage the desperate to continue their efforts to enter the nation illegally: reinstating the DACA and DAPA programs, adopting an approach to asylum that releases illegal aliens into the country while they await court dates years away, and terminating agreements to hold migrants in Mexico or deny them entry because of the health emergency.
After two years of nonenforcement of the immigration laws, Governor Abbott responded by sending Texas units of the National Guard — the state militia, in constitutional terms — to block migrants from entering Texas, detain and expel illegal aliens, and continue construction of the border wall. In a November 16, 2022, letter, Abbott notified President Biden that the Texas Guard would “repel and turn back any immigrant who seeks to enter our State at a border crossing that Congress has designated as illegal; to return to the border those who cross illegally; and to arrest criminals who violate Texas law.”
Abbott threatens to trigger a confrontation between the federal and state governments of a kind unseen since the South’s shameful resistance to Brown v. Board of Education. In 1957, Arkansas governor Orval Faubus defied a federal-court order and called out the state guard to prevent black students from entering Little Rock’s Central High. President Dwight Eisenhower, who never publicly gave his own opinion on Brown, still believed his duty required him to enforce the court order. He called out the 101st Airborne, placed the Arkansas guard under federal authority, and escorted the black students to school.
As a conservative, it pains me to point out the dangerous parallels between the massive resistance to Brown and Abbott’s dispatch of troops to the U.S.–Mexican border. As in Arkansas 65 years ago, a governor is launching not just accusations or even lawsuits but armed and deadly military units and defying the supremacy of federal law — then, the 14th Amendment’s guarantee of racial equality, today, the Constitution’s vesting of authority over border control in the federal government.
Texas could claim that federalism allows states to act in the absence of national policy, just as it does with most other issues, such as crime. But the Supreme Court foreclosed this possibility in United States v. Arizona (2012), which struck down Arizona’s law authorizing the arrest and detention of aliens in the state illegally. In a 5–3 ruling, the Court acknowledged that “Arizona bears many of the consequences of unlawful immigration” but held that immigration is the exclusive authority of the federal government.
To avoid the plain holding of Arizona, Texas introduces a new claim: that the vast influx of aliens at the border amounts to an invasion. Article IV of the Constitution guarantees to states that the United States “shall protect each of them against Invasion.” In his November 16 letter, Abbott accused of Biden of refusing to “honor that guarantee.” He then invoked a state’s right of self-defense. Article I, Section 10 declares that states, without the consent of Congress, cannot “engage in War, unless actually invaded, or in such imminent danger as will not admit of delay.” Abbott argues that Texas must send troops to the border “to protect its own territory against invasion by Mexican drug cartels.”
Texas is displaying a freewheeling approach to the Constitution that disregards the conservative commitment to interpreting the law based on its original meaning. Abbott may believe that the unrestricted movement of 2 million people across the border, with drug cartels mixed in, constitutes an invasion. But he presents no evidence that the Founders would have seen it as such. In their time, it seems obvious that they would have defined an invasion as a hostile entry by an armed force into the territory of the United States. An invasion would be conducted by an enemy, ultimately a sovereign state, but also possibly pirates and Indian tribes.
An originalist interpretation of “invasion” would exclude the border crisis. While some drug cartels are using the flow of aliens across the border to conceal their illegal activities, the vast majority of those entering Texas are doing so for economic reasons. Like the waves of immigrants throughout American history, aliens seek to better their lives by escaping poverty or oppression. The movement of a mass of people, even 2 million a year, cannot alone constitute an invasion that justifies the use of military force. Article I, Section 10 addresses situations when foreign nations attacked states and there was no time for the federal government to come to the rescue — hence the triggering clause for cases where states are in “imminent danger as will not admit of delay.” The border crisis, awful as it is, does not create an imminent danger. Migration from Latin America has been a persistent problem for decades. Congresses and presidents have had ample time to consider responses; they simply haven’t come to agreement.
Consider the “invasion” claim in light of a past crisis. In the wake of the 9/11 attacks, the Justice Department — where I was an official in the Office of Legal Counsel — considered whether a terrorist attack could constitute an act of war, or whether the United States was limited to responding only with the criminal laws (as all administrations had before) because the enemy was a non-state terrorist group. We rejected the latter idea because al-Qaeda had attacked the United States in order to affect our politics or foreign policy and had inflicted a level of violence beyond the ordinary concept of crime or domestic disorder. Drug cartels, by contrast, seek profit, not political objectives in the United States. They do not want to seize American territory. Their drugs may kill Americans in significant numbers in aggregate, but not through large-scale destructive events, such as the bombing of a city.
Another test reveals Texas’s misreading of the Constitution. If the flood of aliens across the border rises to the level of an invasion, then Texas may “engage in War.” In my scholarly work, I have examined the phrase to explain why the declare-war clause did not require Congress to approve all uses of force. “Engage in War” showed that the Founders used “declare” as a narrower term than beginning military hostilities. But as applied here, the more important term is “war.” If Texas can engage in war, then the laws of war apply. The laws of war allow combatants to kill any member of the enemy armed forces, destroy weapons and military equipment, and destroy any economic resources used to support the war effort.
Applying the rules of war to the border creates serious contradictions. Under our criminal-justice system, police cannot use force except to stop an imminent threat of death to the officer or to bystanders. But if the border influx amounts to war, the laws of war would liberate Texas troops from these criminal-law rules. Texas might consider any illegal alien crossing the border an enemy combatant, subject to targeting by National Guard units. If aliens tried to escape capture, Texas could resort to the use of force to stop them; it could destroy vehicles used to transport aliens; it could attack drug-cartel members not only across the border but all the way back to their hideouts. The implications for foreign relations are obvious. Preventing states from provoking such conflicts was the very purpose of Article I, Section 10’s bar on state war-making.
Imagine if blue states took Texas’s approach to constitutional interpretation on other issues. Governors of California and New York might claim that global warming qualifies under Article I, Section 10 as an imminent danger and could expropriate facilities or companies, which the laws of war permit during hostilities.
None of this denies the human tragedy arising from the border crisis, and the federal government’s monopoly over our territorial sovereignty does not leave states without any recourse. The arenas of that recourse are politics and the courts. Originalism prevents alarmist activists from creatively reinterpreting constitutional terms to address their latest fears. The price is that conservatives have to maintain their own commitment to the original Constitution.