A federal judge ruled Thursday that the migrant surge at the southern border is not an “invasion” under the Constitution and ordered Texas state officials not to enforce a new law creating state penalties for being in the country illegally.
Judge David Alan Ezra said what Texas is trying to do sounds like “nullification” of federal law, which he said states cannot do. He said Republican Gov. Greg Abbott and the rest of the state government must bow to the wishes of the Biden administration and federal authorities when it comes to how immigration policy is being handled.
“At the broadest level, SB 4 conflicts with federal immigration law because it provides state officials the power to enforce federal law without federal supervision,” the judge wrote in a lengthy ruling, using the legislative number for the state law.
Texas had argued that SB 4, which was enacted late last year, is aimed at plugging the gaps the Biden administration has created with its more relaxed approach to illegal immigration and the unprecedented surge of migrants that have poured in.
In particular, Mr. Abbott had pointed to the Constitution’s “invasion clause,” which he said gives him expansive powers to repel a foreign incursion — and that’s what he said the migrants are. Judge Ezra, first appointed to the bench by President Reagan in 1988, firmly rejected that idea.
“Unauthorized immigration is not akin to armed and organized insurrection against the government,” Judge Ezra said.
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Even giving Texas the benefit of the doubt on the invasion question, he said, the Constitution would only allow a state government to step in when the federal government is not engaging on the issue. But here, he said, the Biden administration is taking the steps it deems necessary and has ordered Texas to back off.
“In sum, for Texas to invoke the temporary ’invasion’ defense, the state must be ’engaging in war’ through SB 4. And if Texas is ’engaging in war,’ then the federal government retains complete authority to direct that war once it has capacity to respond,” Judge Ezra wrote. “Texas either is engaging in war, in which case it must obey federal war directives once the federal military has responded, or it is not engaging in war, in which case the State War Clause does not apply.”
Texas filed an immediate appeal of the ruling.
“Texas has the right to defend itself because of President Biden’s ongoing failure to fulfill his duty to protect our state from the invasion at our southern border,” he said, predicting the issue will ultimately be decided by the U.S. Supreme Court.
The ruling came just before Mr. Biden and former President Donald Trump were scheduled to make dueling high-profile visits to the border in Texas. Mr. Biden has been battling Texas over its efforts, which include building miles of razor wire fencing, erecting a floating wall in the Rio Grande and ordering state law enforcement to step up enforcement.
Texas’s SB 4 was intended to go even further.
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It created a state immigration enforcement system, establishing penalties for those deemed to have entered the country illegally and to have snuck back in after deportation. In both cases, the penalties matched federal law, with a misdemeanor offense and a 6-month jail sentence for illegal entry and a felony with up to two years in prison for illegal reentry.
It also allows state judges to order a migrant’s deportation instead of pursuing criminal charges — again similar to the options available to the federal government.
Judge Ezra issued a preliminary injunction halting the law.
“With today’s decision, the court sent a clear message to Texas: S.B. 4 is unconstitutional and criminalizing Black, Brown, Indigenous, and immigrant communities will not be tolerated,” said Jennifer Babaie, director of advocacy with Las Americas Immigrant Advocacy Center, one of the groups that sued Mr. Abbott.
The invasion theory has been percolating in conservative circles for several years, with senior members of former President Donald Trump’s administration arguing it gave border states a way to counter the Biden administration’s negligence.
Article I, Section 10, Clause 3 states: “No State shall, without the Consent of Congress … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”
Judge Ezra said that doesn’t fit with what’s going on at the border.
He suggested he was reluctant to address the invasion argument in full in his ruling because that takes it “more seriously than it deserves,” but then proceeded to spend 40 pages doing just that.
He said he was weighing in because the invasion argument has sparked interest among some judges on the 5th U.S. Circuit Court of Appeals, which oversees Judge Ezra’s court.
“Put simply, if Texas is engaging in war by enacting SB 4, it must cede authority to the federal government to conduct that war once the federal government has had time to respond to the purported invasion. Here, the United States has had time to respond, and it has directed Texas to halt enforcement of SB 4,” he wrote. “If the United States is truly at war, Texas may not direct its officers to disobey that command.”
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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