Judges Grapple With Invasion Theory in Texas-Biden Border Scrap

The Fifth Circuit delved deeper into the immigration battle on the Mexico border Wednesday, with some judges suggesting Texas can enact enforcement measures independent of the federal government because the state is under invasion.

During oral arguments in New Orleans on Texas’s construction of a floating barrier to deter illegal crossings, several conservative judges suggested the court doesn’t have authority to decide if a surge in migrants equals an invasion.

“If it’s non-justiciable, then the action that Texas has taken stands unmolested,” Judge Jerry Smith said.

Smith mentioning the invasion theory prompted Judge Edith Jones to say she “hadn’t been interested until Judge Smith raised it. Now I’m interested.”

Going back-and-forth with a lawyer for Justice Department, Jones suggested the invasion theory was political, not legal. Thus, Jones asked, “under what circumstances can the United States thwart that attempt at self defense?”

Texas has invoked the federal invasion clause to justify several border enforcement strategies it says are necessary because the Biden administration is failing to seriously crack down on illegal crossings. The most notable is a new law courts have put on hold that would authorize Texas to initiate arrests and deportations under state level crimes. The law, known as S.B. 4, went before a Fifth Circuit panel last month.

Wednesday’s oral argument was before the entire US Court of Appeals for the Fifth Circuit, broadening a dispute on the barriers that thus far has come before only a three-judge panel . Last December, a split panel affirmed a trial court’s preliminary injunction directing Texas to remove the 1,000 feet long barrier near Eagle Pass, a hot spot for migrant crossings. But a month later, the full court vacated the opinion in announcing it would re-hear the case; that allowed for the barriers to return pending review from the full court.

Addressing the invasion claim, Lanora Pettit of the Texas Attorney General’s office said the court can’t address the theory unless the federal government can show “under no circumstance is this an invasion.”

DOJ lawyer Michael Gray said immigration isn’t “the type of invasion the constitution allows.” He also said the barrier violates the federal Rivers and Harbors Act claim by obstructing a navigable waterway; Texas says the strip of water is only 18 inches deep and therefore not navigable.

Judge Andrew Oldham, a Trump appointee, elicited a response from Gray that the federal government’s research shows historically that ferries crossed in the vicinity of the barrier’s location, but not in the specific area.

“Why isn’t that a fatal problem for your theory?” Oldham said.

Judge Don Willett, the lone judge on the December panel that opposed the preliminary injunction, wrote a dissenting opinion saying the stretch of water isn’t navigable.

The arguments represent a preview of a fast-approaching trial on the merits. Set to begin Aug. 6, lawyers will present evidence on invasion and navigability to a trial court judge in Austin. That judge, US Senior District Judge David Ezra, last September issued the injunction against Texas that was the basis for Wednesday’s arguments. More recently, in April, Ezra kept the case alive in rejecting Texas’s bid to dismiss. However, he handed Texas a partial win in ruling the federal government can’t proceed on a claim invoking the Treaty of Guadalupe Hidalgo, signed in 1848.

Judge James Ho, a Trump appointee, on Wednesday accused the federal government of forum shopping by filing the case in Austin, a left-leaning district court situated more than 200 miles from the barrier.

Ho, who previously wrote he believes Texas is under invasion from migrants, said a more appropriate court would’ve been in Del Rio, near the border.

The case is U.S. v. Abbott, 5th Cir. en banc, No. 23-50632, oral argument 5/15/24.