Well folks, the Supreme Court has been in the news a lot recently. Now it appears we are bracing for another major battle in the near future between the federal government and the individual states.
Why should we care? Look at our history. The very issue of state’s rights was at the core of the conflict leading to the American Civil War.
So, what exactly is going on? I found two great articles addressing the current conflict.
First, what is the argument about?
By Bethany Blankley | The Center Square contributor
On the same day the U.S. Department of Justice filed a civil complaint against Texas over a floating barrier of buoys strung together in the Rio Grande River, Gov. Greg Abbott sent a letter to President Joe Biden saying that Texas has a right to defend its border.
The Department of Justice said the floating barrier was constructed without federal authorization as required under the Rivers and Harbors Act and creates a humanitarian threat. The complaint seeks to stop construction of the barrier and to require Texas to remove it.
But Abbott is having none of it.
The Texas governor’s formal letter sent Monday is a follow up to the notice he gave on Friday in response to the DOJ saying its civil action was coming. DOJ’s lawsuit also was filed Monday.
Abbott’s two-page letter copies Attorney General Merrick Garland and three Texas officials: the provisional attorney general and heads of the Texas Military Department and Department of Public Safety.
He also includes copies of two letters he previously sent to the president, the first of which was sent last November explaining Texas’ constitutional right to secure its border.
The second he hand delivered on Jan. 8, 2023, outlining solutions the president could take immediately to secure the border.
Abbott, a former Texas Supreme Court justice, wrote, “In accordance with Article I, § 10, Clause 3 of the U.S. Constitution, I have asserted Texas’s “sovereign interest in protecting [her] borders,” citing Justice Antonin Scalia’s dissent in the 2012 U.S. Supreme Court case, Arizona v. United States.
“I have done so in my role as the commander-in-chief of our State’s militia under Article IV, § 7 of the Texas Constitution,” citing a ruling in the 2023 case, Abbott v. Biden, when the federal judge in this case held that “the Constitution forbids President Biden from bypassing the States [and] stepping into Governor Abbott’s shoes.”
Abbott also states that the president’s “ongoing violation of Article IV, § 4 of the U.S. Constitution has left me no other choice” than to secure the Texas border and block illegal entry.
He also points to arguments he made in the letters he previously sent and reiterates what he told the president in El Paso, Texas, on Jan. 8: “All of this is happening because you have violated your constitutional obligation to defend the States against invasion through faithful execution of federal laws.”
So basically, the federal government has threatened to sue the state of Texas for overstepping its authority when it comes to enforcing the border between Texas and Mexico. The Governor has told Biden that he isn’t doing his job, so Texas will.
Now we see allegations from both sides and of course, legal arguments that will eventually wind up before the US Supreme Court.
Here are few of the legal arguments.
As the ongoing humanitarian and security crisis continues unabated along the U.S. southern border, states are looking for new ways to take the lead to stop this invasion in lieu of both Washington’s inaction and willful negligence.
Among the remedies available is the Constitution’s “self-help” provision for states to defend themselves from threats outside their respective territories. Below are various claims and responses made in consideration of whether states can bring an end to the crisis along the U.S. southern border:
Claim: Federal law is explicit that the responsibility for securing the U.S. border falls to the federal government. States attempting to secure the border do so without legal authority.
Response: The authority for states to secure the border does not rest on federal immigration law, but the Constitution’s war-making authorities that states retain in certain circumstances. Specifically, the Constitution provides a clear and firm foundation for states to act decisively should the federal government fail to uphold its obligations.
Among these obligations are those found in Article IV, Section 4, the “Guarantee Clause” of the Constitution.
That clause specifies, “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them from Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence.”
The guarantee against invasion is unconditional and fundamental, extending to all forms of invasion. The federal government is currently in violation of its duties under the Guarantee Clause. Therefore, states are currently within their rights to act using their Article I authority – not immigration authority – to defend themselves.
Claim: The Constitution does not list border security in the list of authorities states may employ in certain circumstances under Article I.
Response: Article I, Section 10, Clause 3 explicitly permits state war powers to be exercised if a state is invaded. The clause says, “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 delay.”
There is no limitation within the text of what constitutes an “invasion.” The Framers were keenly aware that the threats to the states were not limited to foreign armies from Great Britain or Spain, but also “some nation of Indians,” “pirates,” and other external lawless groups intent on inflicting harm or seeking their own ends at the expense of Americans.
Therefore, the original meaning of the word “invasion” contained in Article IV, Section 4 of the Constitution encompasses all such external threats to the safety, security, or well-being of the states and their citizens.
Claim: The mere migration of many destitute immigrants does not constitute an invasion, and the assertion that it does is simply designed to invoke these authorities.
Response: Over two million illegal immigrants were apprehended at the southern border last year, with over another half a million escaping apprehension.
Border agents seized enough fentanyl to potentially kill 2.5 billion people. These sophisticated human smuggling and drug trafficking efforts are spearheaded by violent international drug cartels with operational control over our southern border.
The external threat to the states posed by the invasion of people, drugs, and crime, facilitated by these deadly organizations, is both an imminent and ongoing danger.
Claim: There is no case law regarding the invasion question. States attempting to utilize this provision to act unilaterally to secure the border are doing so without legal precedent.
Response: It is true that there is no existing case law with regard to the invasion question of the “Guarantee Clause.” However, there is a Supreme Court case from 1849 (Luther v. Borden) that deals specifically with the republican form of government provision within Article IV, Section 4 of the Constitution.
The Supreme Court in Luther held the matter non-justiciable as an inherently political question. In other words, applying the Luther case holding to the invasion provision of the Guarantee Clause leads to the conclusion that states themselves maintain the discretion to determine whether or not they are being invaded.
Well folks, there it is in a nutshell. This will be a very interesting case when it finally reaches the Supreme Court. I have no idea how the justices will rule. However, based on history, I fear how the states will react if the Supreme Court fails to rule in favor of the border states.
Only time will tell, and this is a case we should all be following.