Robert G. Natelson (Independence Institute; Univ. of Montana Law School (ret.)) & Andrew Hyman (Institute for Intermediate Study) have posed The Constitution, Invasion, Immigration, and the War Powers of States (59 pages) on SSRN. Here is the abstract:
By express and implied reservation, the Constitution permits states to wage defensive war in response to insurrection, invasion, and molestation by transnational criminal gangs. This article examines the under-researched area of state war powers and how they interact with federal military powers and other foreign affairs powers. It also recovers the meaning of the Constitution’s term “invasion” and demonstrates that several judicial decisions have construed that term far too narrowly. The article ends with reflections on justiciability and remedies in state war power cases.
RELATED: Also by Rob Natelson, recently posted on SSRN: The Constitution and the False Doctrine of Inherent Sovereign Authority (27 pages). Here is the abstract:
Although it is generally agreed that the Constitution created a federal government of enumerated and limited powers, occasionally commentators and the Supreme Court raise the claim that the federal government also enjoys unenumerated powers inherent in sovereignty. The Supreme Court firmly rejected this “doctrine of inherent sovereign authority” in 1907, but has relied on it or alluded to it favorably several times since—most recently in 2023.
This article analyzes the doctrine’s purported foundations, and concludes that it is both based on a logical fallacy and is without historical, legal, or textual basis. Writers seem to employ it only when they believe, either accurately or erroneously, that the Constitution does not grant a power they think the federal government should have.
Though I don't agree with every point in the latter article, I entirely agree that the federal government does not have inherent sovereign powers and that the argument to the contrary is (among other problems) based on a logical fallacy.
Posted at 6:18 AM