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. government’s request for a preliminary injunction should have been dismissed because when a state, in good faith, claims it has been invaded and invokes its war powers, the legality of its decisions are non-justiciable political questions:
Supreme Court precedent and longstanding Executive Branch practice confirm that, when a President decides to use military force, that’s a nonjusticiable political question not susceptible to judicial reversal. I see no principled basis for treating such authority differently when it’s invoked by a Governor rather than by a President. If anything, a State’s authority to “engage in War” in response to invasion “without the Consent of Congress” is even more textually explicit than the President’s.
In Judge Ho’s view, however, “good faith” decision making is a prerequisite to non-justiciability. In this respect and in some other respects, his analysis is similar to ours. We wrote:
“Insurrection” and “invasion” not only trigger the federal government’s duty under the [Guarantee] Clause, but also trigger exercise of state war powers. If the terms are too vague for courts to define for federal purposes, then they also are too vague for courts to define for state purposes. If [Guarantee] Clause cases are held to be non-justiciable because the Constitution commits the decision of whether and how to protect states against invasion to the political branches of the federal government, then the Constitution even more clearly commits (as demonstrated by the Self-Defense Clause) the determination of whether a state has been “Invaded” or in “imminent Danger” to the state government. If redressibility issues impede justiciability in [Guarantee] Clause cases, then they could also impede justiciability when a state has gone onto a war footing and raised an army.
To be clear: If federal officials are proceeding in good faith to crush an insurrection or repel an invasion, the courts should not second-guess their tactics. But judicial intervention is appropriate when federal officials utterly neglect their duty or adopt measures so plainly insufficient as to demonstrate a lack of good faith effort.
Judge Ho’s concurrence matched our conclusions in another respect as well: Both he and we doubted whether a federal law, even if clearly contradicting the right to state self-defense, could take priority over that right. (“[F]ederal statutes,” he wrote, “ordinarily must give way to federal constitutional rights.”) This makes sense: Self-defense is inherent in sovereignty, and the Supreme Court has defended even less important aspects of state sovereignty from otherwise-valid congressional action. Examples include the protection of a state’s decision on where to locate its capital and protection of state officials from federal “commandeering.”
Judge Andrew S. Oldham also concurred, primarily to dispute Judge Ho’s foray into constitutional issues. Judge Oldham rested his conclusion solely on a finding of non-navigability.
The Dissents
In his dissent, Judge Stephen A. Higginson argued that the federal government should be able to rely on ferry traffic across a river to prove the river’s navigability.
Judge Dana M. Douglas’s dissent challenged the majority’s evidentiary conclusions on navigability, maintaining that the federal government had presented ample evidence that the Rio Grande near Eagle Pass qualified as navigable. She also concluded that once Congress has an opportunity to respond to an invasion, state war powers cease:
Clause 3 provides that a state may engage in war without consent of Congress only when it is “actually invaded, or in such imminent Danger as will not admit of delay.” . . . See, e.g., Articles of Confederation of 1781, art. VI, para. 5 (limiting a state’s power to engage in war “till the united states in congress assembled can be consulted”); Robert G. Natelson & Andrew T. Hyman, The Constitution, Invasion, Immigration, and the War Powers of States, 13 Brit. J. Am. Legal Stud. 1, 17 (2024) (noting that, in regard to state war powers, the Constitution resulted in “a balance between federal and state prerogatives roughly similar to that under the Articles of Confederation”) . . . .
In other words, because the scope of state war power under the Constitution is roughly equal to the scope under the Articles, and because the Articles required consultation and/or consent by Congress, then state war power under the Constitution is similarly limited.
Unfortunately, the publication she relied on—ours—directly contradicted her conclusions. We wrote that under the Articles of Confederation, states “retained virtually unlimited flexibility to engage in defensive land war—even after Congress had been consulted—except for power to strike pre-emptively at non-Indian enemies.”
More importantly, we found that the Constitution had removed the Articles’ constraints on state defensive war:
[O]n the land side, the Constitution preserved general state control over their militias while providing that “No State shall, without the Consent of Congress . . . keep Troops . . . in time of Peace . . . or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” This limitation omitted the Articles’ contingent requirement of consultation with Congress. (Italics added.)
We have written to Judge Douglas advising her of the discrepancy.
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Rob Natelson is senior fellow in constitutional jurisprudence at the Independence Institute in Denver and a former constitutional law professor at the University of Montana. He is the author of “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2015).
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