On Friday, the full U.S. Court of Appeals for the Fifth Circuit, sitting en banc, rejected challenges by activist plaintiffs to a law in Texas called S.B.4, which protects Texas’s border with Mexico. The Federation for American Immigration Reform (FAIR) had filed a brief with the court urging that result.
The plaintiffs claim the law conflicts with federal immigration law. In its brief supporting S.B.4, however, FAIR demonstrated that, regardless of this claimed conflict, the law is permissible under the Constitution as a war measure by the state of Texas.
During the Biden Administration, Mexican cartels, which control the Mexican side of the border, ran massive numbers of foreign nationals from around the world, along with massive quantities of drugs and other contraband, into Texas and other states.
In response to this invasion by the cartels, Governor Greg Abbott declared war under Section 10 of Article I of the U.S. Constitution, which provides that states, “without the Consent of Congress,” may “engage in War” if they have been “actually invaded.” In addition to enacting S.B.4, Texas has taken other steps to wage this war, including placing floating barriers in the Rio Grande and stringing razor wire to block invaders, and people who fund the cartels, from entering the state.
FAIR showed in its brief that the questions of whether Texas has been invaded and whether its chosen means of waging war are appropriate are both what are called “nonjusticiable political questions”—meaning they have no legal answers, and so courts should decline to decide them, but rather leave them to the political branches of state government. Then FAIR showed that Texas’s valid exercise of its constitutional power to repel an invasion overrides any inconsistent federal laws for the duration of the conflict.
None of the en banc judges, writing in separate opinions, disagreed with FAIR’s first point. As Judge Ho, writing in an opinion concurring with the court’s judgment, explained, migration is frequently and increasingly used as a weapon of war, especially against the United States, and questions of war and peace are political questions to be decided by elected officials, not legal questions to be decided by judges.
Judge Ho also agreed with FAIR that Texas’s exercise of its war power in S.B.4 could not be blocked or preempted by conflicting federal law. As he tellingly pointed out, no one could explain why Texas’s exercise of its constitutional right to make war could be overridden by Congress, while citizens’ exercise of other constitutional rights, such as the First Amendment right to free speech, cannot be so overridden.
For its part, the majority of the court described S.B.4 in its ruling as the State of Texas’s exercise of “its historic, sovereign police powers [to] protect its citizens from a surge of illegal aliens in response to an unprecedented border crisis and a declared invasion.” The majority then ruled that the plaintiffs, because they were not directly affected by S.B.4, did not even have standing to bring their challenges to it. The court dismissed the case on this basis, thus leaving S.B.4 in effect.
“Whether to go to war and how to wage it are not legal questions,” said Dale L. Wilcox, executive director and general counsel of FAIR. “The Constitution accordingly gives the power of deciding them to states, not to courts. We are pleased that the court, far from disputing any of this, reached the right result in this case.”
The case is Las Americas Immigrant Advocacy Center v. Martin, No. 24-50149 (Fifth Circuit).
