The Constitution provides, in Article I, Section 10, Clause 3: “No State shall … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” In light of the surge in illegal entries across our Southern Border, Governor Abbott of Texas has declared, pursuant to the Invasion Provision, that Texas has the “constitutional authority to defend and protect itself.” And he has ordered the erection of barbed wire fences on the Texas side of the Rio Grande, etc. (Previous Originalism Blog posts on this subject are collected here.)
In 1788 and today, the term “invasion,” just like virtually ever other word in the English language, had and has a degree of vagueness in meaning. Does an “invasion” necessarily denote armed troops entering a foreign territory with hostile intent? No, because there can be an invasion of ants in a basement. And, did you ever watch either version of the movie “Invasion of the Body Snatchers”? No armed troops in that screenplay. The vagueness of “invasion” is disclosed in any dictionary, whether published in 1788 or today. There is, moreover, absolutely no reason to believe that the meaning of “invasion” has changed since 1788; nothing in the context or our current understanding of the Invasion Provision suggests any such change in meaning. (And this is to leave aside the infinite regress generated by the Paradox of Originalism, which results from the presumption that a text created in 1788 might have a meaning that can be ascertained only by consulting dictionaries or other literary materials that are roughly contemporaneous with that text. See, here.)
If the meaning of “invasion” at all relevant times has been somewhat vague, what is the best understanding of that word in the context of the Invasion Provision? The Invasion Provision itself provides a definitive answer. An “invasion” referred to in the Invasion Provision is one that justifies a State in “engag[ing] in War” to counter that invasion. Governor Abbott of course is not contemplating shooting people who illegally enter Texas, or even holding them indefinitely as prisoners of war until the war has ended (while affording them full rights under the customary laws of war and the Geneva Conventions of 1949). But, if those illegal entries constituted an “invasion” that justified “war” under the Invasion Provision, shooting the invaders or holding them as prisoners of war is exactly what one would expect Texas to do. It follows, I submit, that the invocation of the Invasion Provision by Governor Abbott is unjustified, as even he knowingly or unknowingly implicitly concedes.
UPDATE (by Michael Ramsey): From Ilya Somin at Volokh Conspiracy: More on Why Immigration is not "Invasion".
I have previously criticized Texas's badly flawed argument that illegal immigration and cross-border drug smuggling qualify as an "invasion," thereby triggering the state's constitutional authority to "engage in war" in response (see also here). Prominent legal scholars Frank Bowman (Univ. of Missouri) and Steve Vladeck (Univ. of Texas) have recently posted articles on the same topic, at Just Security and Lawfare, respectively.
Bowman offers a detailed originalist critique of the invasion argument, surveying a number of relevant founding-era sources …
Posted at 11:34 PM