Yesterday, the US Court docket of Appeals for the fifth Circuit dominated towards Texas in United States v. Abbott, a case the place the federal authorities is suing the state of Texas for putting in floating buoy obstacles within the Rio Grande River to dam migration and drug smuggling, creating a security hazard and presumably impeding navigation. The Biden Administration claims this violates the Rivers and Harbors Act of 1899. Texas argues in any other case, however but additionally cites one of many “invasion” provisions of the Structure as justification for the state’s actions. Texas depends on Article I, Part 10, Clause 3 of the Structure, which supplies, “[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.” Texas contends that unlawful migration and drug smuggling qualify as “invasion,” and due to this fact the Structure provides the state the facility to take army motion in response, even when doing so would possibly violate a federal statute, and even when there isn’t any congressional authorization for battle.
In earlier writings about this case, and the broader points raised by claims that immigration and drug smuggling qualify as “invasion,” I’ve defined why such contentions are badly mistaken as a matter of textual content and authentic that means, and why accepting them would set a harmful precedent empowering states to interact in battle with out congressional authorization, and the federal authorities to droop the writ of habeas corpus at just about any time it needs.
In August, a federal district courtroom dominated towards Texas on each the statutory and constitutional points, and entered a preliminary injunction towards Texas. Yesterday, the Fifth Circuit affirmed, in a divided 2-1 ruling.
The bulk opinion by Choose Dana Douglas centered nearly fully on the statutory subject. Nevertheless, it does additionally be aware that it upholds the district courtroom’s ruling that the federal authorities is prone to prevail on the deserves (one of many standards for upholding a preliminary injunction), and this is applicable to the district courtroom’s ruling on the “invasion” argument, in addition to the statutory one.
In a dissent opinion, Choose Don Willett argues that almost all acquired the statutory subject mistaken, primarily as a result of the a part of the river in query just isn’t “navigable,” and due to this fact the related statute would not apply to it. He additionally argues that the federal government didn’t show that it will undergo “irreparable harm” if the injunction was denied, or that the stability of equities and the general public curiosity require an injunction. Nevertheless, he additionally famous that “Texas has not offered concrete evidence that the barrier has saved lives or reduced illegal crossings and drug trafficking.” Considerably, Choose Willett didn’t endorse Texas’s invasion argument.
I will not opine on the statutory subject. Each the bulk and Choose Willett make some good factors there. My curiosity is targeted on the “invasion” concept, which has huge significance that goes past this particular case. I’m pleased that, to this point, not one of the judges who’ve thought of the case endorsed it. For these conserving observe, the district decide is a Reagan appointee, the 2 judges within the Fifth Circuit majority are Democratic appointees, and Choose Willett is a libertarian-leaning conservative appointed by Trump.
Texas will probably attempt to get the Supreme Court docket to listen to the case. If the Court docket takes it, I hope they too will reject the “invasion” concept, no matter what they do on the statutory query.