Texas Makes A Counterproductive Argument To Defend Its Floating Barrier System (Updated with a Postscript!)

My latest Verdict column discusses last week's action in the case brought by the United States against Texas and Governor Greg Abbott concerning the floating barrier system the state has erected in a portion of the Rio Grande as a political stunt in order to prevent the entry into the state and country of drugs and undocumented immigrants. As I explain, Federal District Judge David Ezra issued a well-reasoned and thorough opinion finding that Texas violated a federal statutory provision codified at 33 U.S.C. § 403 forbidding obstruction of navigable waters. Judge Ezra also rejected the claim by Texas that it was authorized to take emergency action by the provision of the Constitution's Art. I, § 10, cl. 3 allowing states to act in the event of an "inva[sion]."

On Friday of last week, the Fifth Circuit granted an administrative stay pending appeal. I agree with the U.S. government that the stay was improper, given both the timing and the weakness of the arguments for Texas on the merits. But the occasion of the stay provides an opportunity to elaborate further points. Here I'll add to what I say in the column by noting that the "invasion" claim advanced by Texas very seriously undermines its case -- so much so that it makes apparent that the floating barrier system would be illegal even if the statutory prohibition of 33 U.S.C. § 403 did not exist.

To see why, consider the full language of Art. I, § 10, cl. 3:

No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

Texas argued to the district court that whether unauthorized border crossings from Mexico are an actual invasion is a non-justiciable political question that the Governor of Texas gets to decide. Judge Ezra rejected that contention as wildly implausible: Congress and the President--not the governors of the majority of states that border an ocean, Mexico, or Canada--are the logical political actors to determine what amounts to an invasion, given the assignment of primary responsibility for immigration and national security to the federal government.

Nonetheless, suppose Texas does get to declare that it faces an "invasion" of drugs and/or migrants. Even so, that would not give it the power to do any of the things listed in Art. I, § 10, cl. 3 without Congressional authorization, unless it faces "such imminent danger as will not admit of delay." As I explain in the column, Texas clearly lacks authorization from Congress, given 33 U.S.C. § 403. The most that can be claimed (and extremely implausibly at that) for the statutory arguments by Texas is that 33 U.S.C. § 403 does not forbid the state's floating barrier system; under no reading of the statute does the statute affirmatively authorize the barrier system.

Meanwhile, my column also explains that the final ten words of the statutory provision ("in such imminent danger as will not admit of delay") pretty obviously contemplate circumstances in which a foreign invasion leaves a state with insufficient time to obtain authorization to fight from Congress before the enemy is at the gates. That circumstance is obviously not present here, where Congress has known about border security issues for decades. The fact that Texas doesn't like what Congress and the President have done or not done about border security does not mean that there has been inadequate time for Texas to seek Congressional approval for its plans. If it did, then the "unless" clause of Art. I, § 10, cl. 3 would completely negate the general obligation to seek and receive Congressional approval for a state's hostile actions towards a foreign sovereign.

But now the kicker. If Texas is right that Art. I, § 10, cl. 3 is relevant, that must be because the floating barrier system amounts to engaging in war with Mexico. But because Texas lacks Congressional authorization and the no-time-to-seek-Congressional-approval exception plainly does not apply, then the act of war against Mexico by Texas is not merely not authorized by Art. I, § 10, cl. 3. That constitutional provision forbids it.

In other words, indulging the state's far-fetched claim that it faces an "invasion" utterly undermines its case. The floating barrier system does not merely violate a statute. It is flat out unconstitutional.


** Postscript Update: Two readers separately wrote to me to suggest that my reading of Art. I, § 10, cl. 3 is mistaken because the "such imminent danger as will not admit of delay" clause is separate from the "engage in war" clause. In their view, states are authorized to engage in war without Congressional authorization if actually invaded, full stop. Thus, according to this parsing, even if there is time to seek Congressional authorization to engage in war but the state doesn't bother seeking Congressional authorization or it does and Congress says no, the state may go ahead and engage in war.

I agree with these readers that their parsing is plausible. Indeed, it's probably a better reading of the literal language and syntax than the one I offered in the original post above. Thus, I'm grateful to them for the intervention. However:

(1) The bottom line obviously does not change because the claim by Texas that it is being "actually invaded" is not remotely plausible. (Neither reader who wrote to me claimed otherwise.)

(2) The alternative parsing has its own difficulty. Given the placement of a comma after "engage in war," the most logical strictly textual parsing would have the "unless" clause modifying everything that comes before and not simply the "engage in war" clause. Thus, strictly on textual grounds, we would be even more justified in concluding that in case of actual invasion, the requirement of Congressional authorization is eliminated not only for a state to engage in war but also for a state to do all of the other things that precede "engage in war," namely to: "lay any duty of tonnage, keep troops, or ships of war in time of peace, [or] enter into any agreement or compact with another state, or with a foreign power . . . ." But that seems practically nonsensical. It is one thing to say that a state can fight back if under attack. Yet the notion that it can "keep troops, or ships of war in time of peace" when actually invaded is practically a non sequitur. That difficulty is a hint that the combination of punctuation and syntax don't get us all that far in inferring the full meaning of Art. I, § 10, cl. 3.

(3) Accordingly, I think Art. I, § 10, cl. 3 is best read functionally and as a whole. Doing so, it would seem completely appropriate that a state can fight back (i.e., engage in war) either when actually invaded or when on the verge of being invaded (imminent danger) but can only do so in either case (actual or imminent invasion) if it either has Congressional authorization or there is insufficient time to seek and receive such authorization.

The alternative suggested by my readers would allow a state to wage war against a foreign power when actually invaded and to do so indefinitely despite a demand from Congress that it desist--because under their view, the timing limitation of the final clause doesn't apply at all in the case of actual invasion. Thus, even if the policy of the U.S. as expressed by Congress is to negotiate an armistice or peace treaty with an invader, under my readers' parsing, a state that was actually invaded can keep fighting. That seems quite contrary to federal supremacy with respect to national security and also quite impractical, given the ability of the federal government to nationalize state militias in wartime.

Hence, while I acknowledge that the alternative reading of my readers is a better (though still problematic) fit with the literal language and syntax of Art. I, § 10, cl. 3, I continue to think that my initial reading is better, all things considered.

Finally and more broadly, one of the disadvantages of blogging versus writing only articles that take months to complete is that one cannot fully run an argument to ground before launching it into the world. So it should go without saying that whatever I put up here reflects my tentative view, always subject to the possibility of correction and revision.