Governor Abbott’s Perilous Effort at Constitutional Realignment

As Texas has escalated its efforts to carry out its own immigration policy along the U.S.-Mexico border, it has also embraced, both publicly and in litigation over its placement of buoys in the Rio Grande, a federal constitutional argument that, it claims, allows it to supplant federal law enforcement efforts. Specifically, Texas Governor Greg Abbott (R) and Texas’s lawyers have advanced the highly charged claim that Texas is being “invaded” by migrants who are attempting to enter the United States without authorization—and that Texas therefore has a right under Article I, § 10, Clause 3 of the federal Constitution not just to defend itself, but to do so in contravention of otherwise valid federal statutes and policies. As Abbott put it on Wednesday, “I have already declared an invasion under Article I, § 10, Clause 3 to invoke Texas’s constitutional authority to defend and protect itself.  That authority is the supreme law of the land and supersedes any federal statutes to the contrary.”

Article I, § 10, Clause 3 is primarily a statement of several things that states may not do. It includes a default rule that “[n]o State shall, without the Consent of Congress, … engage in War.” It is true that the final clauses of Clause 3 create a limited right for states to respond to “invasions” in a way that the clause otherwise denies them—namely, the power to “engage in War” without congressional consent when they are “actually invaded” (or at imminent risk of the same). The “Actual Invasion Clause,” in other words, is an exception to the default prohibition on states’ war-engagement power in Clause 3.

In arguing that Clause 3 provides a federal constitutional basis for its actions along the U.S.-Mexico border, Texas has advanced two broader claims. The first is that what is currently happening along the border meets the threshold definition of “invasion.” The second is that Texas can defend itself against invasions without regard to—and even in derogation of—federal laws and policies. Neither argument is persuasive, but the second is truly extraordinary.

Taking invasion first: In a recent case involving a dispute with the federal government over Texas’s placement of movable buoys in the Rio Grande, Texas has claimed that “invasions” can come from non-state actors—and that what’s happening in Texas right now is an invasion.

The argument that non-state actors can “invade” states is certainly a reasonable one—especially in light of the historical and contemporary examples of the United States engaging in armed conflict with entities other than the militaries of foreign states. But that’s about as far as Texas’s argument makes sense. Indeed, three different courts of appeals have already rejected arguments that an uptick in unauthorized border crossings by migrants could qualify as an “invasion” for constitutional purposes. 

In Padavan v. United States, for instance, the U.S. Court of Appeals for the Second Circuit rejected a claim by New York state elected officials that federal immigration policies vis-à-vis undocumented immigrants were facilitating an “invasion”: “In order for a state to be afforded the protections of the Invasion Clause, it must be exposed to armed hostility from another political entity, such as another state or foreign country that is intending to overthrow the state's government.” The Third Circuit followed suit three months later in New Jersey v. United States, dismissing New Jersey’s argument because “[i]t offers no support whatsoever for application of the Invasion Clause to this case or for its reading of the term ‘invasion’ to mean anything other than a military invasion.” (And the Ninth Circuit echoed both in a subsequent ruling.) As these cases make clear, however far the term “invasion” might be stretched, extending them to unauthorized border crossings by unarmed migrants just doesn’t come close. Nor should it. Recall that the purpose of the Invasion Clause is to permit a state to engage in war against those invading it. The idea that Texas could “engage” in a “war” against such (mostly unarmed) foreign nationals is little more than a rhetorical flourish.

And as Professor Ilya Somin has explained, Founding-era materials support this view. More than that, given how many times the Constitution references “invasions,” and the extraordinary powers it grants to the federal government to act in such cases, it ought to be obvious why there is a serious danger in watering down the constitutional threshold. Among other things, as Somin points out, do we really think that the federal government could suspend habeas corpus in response to the claimed upsurge of unauthorized entries along the U.S.-Mexico border? (Article I, § 9, Clause 2 provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it” [emphasis added].)

More importantly, even in cases (unlike in Texas today) in which § 10 is applicable, it does not give the state any power to “supersede” federal statutes. Abbott’s claim to the contrary—which he has yet to test outside of briefing in the current lawsuits between the United States and the Biden administration—is an extraordinary assertion of state supremacy over federal law. It misreads the text, purpose, and historical understanding of how the Constitution structures federal and state relationships when it comes to national defense. And however sympathetic some might be to what Texas claims it is trying to do, were courts to endorse these arguments, it could have ominous implications for national security far beyond the specific—and hotly contested—space of border security.

For the brief but significant period during which the original 13 colonies were quasi-independent countries (between the Declaration of Independence and the adoption of the Articles of Confederation), they had a sovereign right to defend themselves—and there was no federal government to claim superseding authority. When those sovereign states adopted the Articles of Confederation in 1781 (after the Second Continental Congress had passed it in 1777) and ceded some of their power to the new Confederation Congress, Article VI of that charter specifically addressed the circumstances in which states would still be entitled to defend themselves: 

No State shall engage in any war without the consent of the united States in congress assembled, unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay till the united states in congress assembled, can be consulted.

In other words, the text refers specifically to “engag[ing] in . . .  war,” and not to more general government law enforcement activities—and the authority the clause reserves was expressly conditioned on the timing of national intervention, that is, authority to act only until the Confederation Congress could address the matter. (Recall that, under the Articles, there was no independent executive to ask for help; Congress was the dominant body in the national government.)

The clause was a product of the times and circumstances in which the United States found itself. At that moment in early American history, the fledgling nation faced the very real threat of invasion along almost all of its land borders—whether from the British in Canada, the French in Louisiana (or Quebec), the Spanish in Florida, or Native American tribes at various points along the frontier. But it had a modest regular army (that, after the Treaty of Paris, would shrink to approximately 600 full-time soldiers), a very large border, and a legislature that would be in session for only a few months out of each year. So it was crucial that the states have the ability to use force to defend themselves against foreign enemies until national troops (and the national government) could join them. And yet, even though the national government created by the Articles was stunningly (and deliberately) weak, states’ authority to defend themselves was still carefully circumscribed—and conditioned entirely on whether the national government had yet had a chance to respond.

That understanding is especially important given that this text was adopted almost verbatim in the U.S. Constitution in 1787. Thus, Article I, § 10, Clause 3 provides that “[n]o State shall, without the Consent of Congress, . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” There is no evidence in Founding-era sources or the ratification debates that followed that the cleaning up of the Articles of Confederation language (and the omission of “till the united states”) was anything other than stylistic—that it was meant to change its substance or to give states more power. Rather, the language was understood to mean the same thing as the language in the prior Articles: State self-defense was a stopgap only until the new federal government could take over in the event of war or invasion. Even in his dissenting opinion in Arizona v. United States, in which he argued that states have a broad constitutional right to exclude outsiders from their territory, Justice Antonin Scalia didn’t read Article I, § 10, Clause 3 the way that Texas is reading it here.

Another provision of the Constitution reinforces this limited view of state authority. Article I, § 8 grants Congress the authority to provide for the calling forth of state militias to “repel Invasions”—authorizing the federal government to commandeer state troops in the very circumstances in which states were allowed to act first. Congress began implementing that authority as early as 1792, in a series of statutes I’ve detailed before—now known as the Insurrection Act. In that respect, the Constitution preserved the structure of the state self-defense provision but dramatically improved the national government’s ability to quickly respond in any case in which it was implicated.

As Professor Jeff Hirsch has detailed, these provisions were part of a broader—and uncontested—theme of the Constitutional Convention:

During the Convention, the Framers sought to strengthen—not weaken—the federal government’s already clear preeminence over war powers during the Confederation period. This was not an incidental or overlooked aspect of the Constitution. To the contrary, the risks involved with giving war powers to the states were among the most discussed aspects of the Constitution, particularly during the subsequent ratification debates, and there was no question that the new document made the federal war powers paramount. Most participants in these debates approved of federal supremacy over the states in this area, while a minority opposed the Constitution in no small part because it deprived the states of such powers. There was no disagreement among either proponents or opponents of the Constitution that it left the states with little to no independent war powers.

The Supreme Court recently echoed this theme in Torres v. Texas Department of Public Safety, in which Texas claimed that it could not be sued for damages under the Uniformed Services Employment and Reemployment Rights Act of 1994. The Supreme Court disagreed, holding that Congress can override state sovereign immunity when legislating pursuant to its war powers. As Justice Stephen Breyer wrote for the Court, “These substantial limitations on state authority, together with the assignment of sweeping power to the Federal Government, provide strong evidence that the structure of the Constitution prevents States from frustrating national objectives in this field.” Moreover, Breyer continued, “History teaches the same lesson.”

In context, the point of Article I, § 10, Clause 3 was to continue under the new, stronger federal government the same authority states had under the weaker Articles of Confederation—to defend themselves only until the (now-far-more-powerful) national government could intervene. And nothing more. And insofar as Texas is arguing that this provision reflects the broader “compact” theory of the Constitution (that the Constitution is a compact between states, under which states retain broad authority to decide which federal conduct is and is not constitutional), it’s worth emphasizing that this argument, which provided much of the legal justification for secession, didn’t survive the Civil War—as the Supreme Court recognized in Texas v. White in 1869.

In any event, Texas’s claimed “invasion” didn’t just start. In fact, Abbott launched Operation Lone Star in March 2021. In addition, federal authorities are present; Congress is in session; and Texas’s real objection is not that the federal government has done nothing—it is that the federal government isn’t doing enough. Thus, there is no basis on which Texas could plausibly claim that the inherent constitutional limit on its self-defense power has yet to be met. Even assuming that what’s happening in and around Eagle Pass is an “invasion,” the only way that Texas’s reading of the Constitution could be correct is if the self-defense power is not just a stopgap, but is wholly unconstrained by what the federal government chooses to do once it shows up.

Without the more general compact theory to support it, that argument would make sense if and only if those who drafted the Constitution intended a radical expansion in the power of states to defend themselves as compared to what was true under the Articles. Not only is there no contemporaneous (or subsequent) support for this reading of the Constitution, but every other war powers provision in the Constitution supports the contrary reading. Indeed, if Texas’s view were correct, there would have been little need for Article I, § 8 of the Constitution to give Congress the power to call out state militias to “repel Invasions”; states could do it themselves. And if, for whatever reason, the federal government chose to respond to an invasion with less (or different) force than a state wanted, the state would be free to use more—no matter the ramifications of the state’s choice for the rest of the country.

There is even less legal authority for Abbott’s claim that Texas’s purported authority “supersedes any federal statutes to the contrary.” The notion seems to be that states exercising their federal self-defense power can override contrary federal policy. In other words, if both a state and the federal government responded to an invasion, Abbott is effectively arguing that the state’s policy choices in how it responded would supersede those of the federal government. But as the Supreme Court has long made clear, courts “cannot resolve conflicts of authority by our judgment as to the wisdom or need of either conflicting policy. The compact between the states creating the Federal Government resolves them as a matter of supremacy. However wise or needful [a state’s] policy, . . . it must give way to the contrary federal policy.” In other words, once there is a federal reaction to an “invasion,” that policy, whatever its merits, necessarily controls.

Of course, that federal policy controls doesn’t mean that we have to like it. Abbott’s implicit argument seems to be that the federal government has shirked its responsibility to, as Article IV, § 4 of the Constitution puts it, “protect each of [the states] against Invasion.” But the remedies for disagreements in these contexts are political—not constitutional (or, as the Supreme Court has held, justiciable). Otherwise, we’d risk a fundamental realignment of the relationship between state and federal authority when it comes to the war powers—a realignment that would not just have dramatic and unpredictable ramifications for the future of U.S. national security policy, but that would turn one of the central purposes (and achievements) of the Constitutional Convention entirely on its head.

Indeed, imagine a universe in which states, under the guise of “self-defense,” could decide to interfere with or otherwise impede federal trade rules or treaties, or other areas in which the federal government’s policy choices have foreign policy ramifications. On this reading, states could not just impede what the federal government is doing; they could affirmatively undermine the reasons for which the federal government is doing it. And in a universe in which the United States ever is “actually invaded” by a foreign army, Texas’s reading would effectively allow for the governors of the states under direct assault to assert strategic and tactical control over the response. Suffice it to say, the parade of horribles that would result from Texas’s interpretation of Article I, § 10, Clause 3 is a long one—regardless of how one feels about current U.S. immigration policy. And that’s all the more reason for all of us to be cautious before we ignore the text, structure, and history of the Constitution in our response.