Invasion defense part of circuit judge debate in Texas marine barrier case

(The Center Square) – In a Fifth U.S. Circuit Appellate Court ruling handing Texas a major win in a border security lawsuit, two judges engaged in debate over whether the federal court has jurisdiction when Gov. Greg Abbott invoked the “Invasion Clause” of the U.S. Constitution as part of Texas’ defense to secure its border.

At issue is the Biden administration suing Texas last July demanding it remove marine barriers it installed in the Rio Grande River to block illegal entry between port of entry in Texas. The Biden administration argues Texas violated the Rivers and Harbors Appropriations Act of 1899. On Tuesday, the Fifth Circuit ruled it did not.

Circuit Judge James Ho agreed with the majority but wrote his own 27-page opinion specifically addressing the state sovereignty issue, arguing the court doesn’t have jurisdiction to rule on it. His colleague, Judge Andrew Oldham, disagreed on the jurisdiction question and addressed Ho’s views in his own opinion.

“A sovereign isn’t a sovereign if it can’t defend itself against invasion,” Ho wrote. “Presidents throughout history have vigorously defended their right to protect the Nation. And the States did not forfeit the sovereign prerogative when they joined the Union. Indeed, the Constitution is even more explicit when it comes to the States. Presidents routinely insist that their power to repel invasion is implied by certain clauses.

“Article I, section 10 is explicit that States have the right to ‘engage in war’ if ‘actually invaded’, ‘without the consent of Congress.’”

Texas counties were the first to characterize the border crisis as an invasion, after the leaders of Kinney, Goliad and Terrell counties declared an invasion on July 5, 2022, The Center Square first reported. Since then, judges and commissioners from 55 counties have declared an invasion and expressed support for Texas declaring one, The Center Square exclusively reported.

After dozens of judges called on Abbott to declare an invasion, in November 2022, he sent a letter to President Joe Biden invoking his constitutional authority to defend Texas sovereignty and expanded troop movement to the border. Half of all U.S. governors support Abbott; their troops are on rotation supporting Texas border security efforts.

Ho points to several examples, including terrorist and national security threats, saying, “there is an ample support, both among the States and at the national level, that this [Texas’ marine barrier case] is a good faith invocation of Article I, section 10.”

But he maintains, “federal courts lack jurisdiction to review Governor Abbott’s invocation of Article I, section 10, and thus lack jurisdiction to hear this case.” He also said, “Courts have no business deciding which national security threats are sufficiently serious to warrant a military response, and which are not.”

Oldham disagreed, saying the Fifth Circuit didn’t need to address the invasion argument because “the Justice Department was wrong; and that is enough to reverse the district court’s preliminary injunction.”

Oldham said the only reason to address the invasion clause in a political question doctrine ruling is “if the Justice Department can prove a whole host of other facts and legal elements – none of which it can.” The court’s ruling “will end this litigation on the merits,” he said. “That is a far better course than dodging the merits and allowing the Department of Justice to escape a judgment that will have a preclusive effect.”

Oldham also rejected Ho’s suggestion to dismiss the case on jurisdictional grounds. Doing so “would have far reaching consequences” he said, especially since Texas and the Biden administration are still embroiled in other border-related litigation.

Pointing to a May 24 letter to the court, Oldham said Abbott didn’t urge them to dismiss the case for lack of jurisdiction but said the district court, which first ruled against Texas, “lacks jurisdiction to second guess Texas’s invocation of the Self-Defense Clause.” Oldham also said Abbott “urges us to reach the merits … the Court need not reach this constitutional issue because the federal government’s statutory claim does not preclude Texas’ self-defense measures.”

Ho cited numerous examples of the federal government recognizing “the right to use military force to repel invasion,” pointing to Texas governors who “concluded they had no choice but to take matters into their own hands,” including former Texas Gov. Sam Houston, which The Center Square first reported on. Article I “gives States the right to defend themselves when there is ‘imminent Danger as will not admit of delay.’ There is no such temporal restriction if a State is ‘actually invaded,” Ho said.

In response to the exchange, Kinney County Attorney Brent Smith told The Center Square, “While the scope of the Governor’s authority to act under the self-defense clause was not specifically addressed by the majority opinion, the Court clearly acknowledged that the Governor has the unquestionable authority as Commander in Chief to invoke the self-defense clause without being subject to judicial review.”

Smith, who led the charge for Texas, as a sovereign state, to defend itself, said, “I believe this same issue will be crucial in the litigation surrounding Texas’ new SB4 law and those future actions Governor Abbott pursues defending the sovereignty of Texas.”

The Fifth Circuit is expected to soon issue a ruling on SB 4, another litigation battle between Texas and the Biden administration and one on which both the Supreme Court and Fifth Circuit have issued rulings.