Members Only | November 23, 2022 | Reading Time: 4 minutes
No, Texas can’t invoke the invasion clause
It's politics, not a legal theory.
White Christian men are really scared of immigrants. Or at least they’re scared of immigrants who are “undesirable.”
They’re just terrified that new people are going to come into their country and make them eat weird food or hear weird languages.
They’re so fragile they have to cast poor people and children just trying to survive as “invading.” Texas Governor Greg Abbott is now so scared he’s begging President Biden to invoke the invasion clause of the US Constitution to protect Texans from refugees and migrant workers.
The US has a decidedly weird relationship with immigration. It’s unique in its need for immigrants to “settle” the country (indigenous Native Americans don’t count). So immigration and naturalization have an outsized importance in the nation’s history. However, despite this need, nativism sprang up with a vengeance as soon as “undesirable” immigrants began arriving in the 19th century.
The narrative that immigrants were an “invading” force began with Samuel Morse’s Foreign Conspiracy Against the Liberties of the United States published in 1836. He said every American citizen who values his birthright should attempt to repel “this insidious invasion of the country” of “illiterate” Catholic immigrants. Chinese immigration was cast as an invasion in the 1870s in such a way that directly led to the Chinese Exclusion Act. Such rhetoric, and comparisons to an invasion of locusts, was applied to immigrants from Eastern Europe. The “invasion” moved on to Mexican immigrants in the 1920s and has remained focused on immigrants from South and Central America, even sometimes being described as a “Wetback Invasion.”
Immigrants are not invading the US.
They are not trying to conquer us, or take land, or forcibly convert us, or steal resources, or do anything else that invading armies have done (or that Americans have historically done to indigenous people).
Current immigrants are coming to the US for the same reasons immigrants came historically. Undocumented immigrants are coming for the same reason documented immigrants are. Everyone just wants safety and economic opportunities. But casting immigrants as “invading” is a purposeful conscious choice to make vulnerable people doing no harm seem threatening and violent.
And now Abbott isn’t just accusing immigrants of invading rhetorically. He’s actually trying to get the president to treat poor people without weapons or power as a military invasion!
On November 16, a day after tweeting it publicly, Abbott wrote a letter to President Biden informing him that he has not lived up to the promise of Article IV, § 4, that the federal government “shall protect each of them against Invasion.”
Since, according to Abbott, the federal government isn’t treating poor immigrants like an invading army, Abbott will now invoke Article I, § 10, Clause 3 of the US Constitution, which allows states to “engage in War” when they are “actually invaded, or in such imminent Danger as will not admit of delay.”
Oh, and just to make it extra scary, Abbott specifies that the invasion is by “Mexican drug cartels.” You’d think we would have heard about drug cartels invading large swaths of Texas.
As far as I can tell the Invasion Clause has rarely been invoked in US history. The one example I could find was in 1914 when the Colorado governor asked Woodrow Wilson to invoke the clause during the Colorado Coalfield War, a bloody labor dispute, not an invasion.
Abbott’s strategy has been regularly rejected by the courts. In New Jersey v. United States, the Third Circuit Court of Appeals rejected New Jersey’s claim that the US had violated its obligation to protect states from invasion by not controlling immigration through international borders better.
In Chiles v. Florida, the plaintiffs, Florida, claimed that the “government breaches its duty when its failure to protect against invasion of illegal aliens imposes coercive pressure on the state and local political processes.” The Southern District of Florida rejected this argument and said the plaintiffs were making a political argument, not a legal one.
Abbott seems to be trying to enforce war powers which, along with immigration enforcement, is the purview of the federal government.
Therefore, he’s clearly trying to unlawfully invoke the threat of invasion to justify rounding up asylum seekers. Last year, Texas passed Operation Lone Star, which already further militarizes the border by giving Abbott authority to deploy the national guard.
Of course, this was also justified through complaining that President Biden wasn’t doing his job. This latest ploy invoking invasion is likely in response to a Texas court ruling that the arrests under Operation Lone Star violated established law that immigration enforcement was the sole purview of the federal government.
New Jersey v. US, as well as Padavan v. US and State of California v. US in the 1990s all confirm this definition. Asylum seekers and poor immigrants are not armed and they are certainly not too formidable for civil powers to deal with. Even if we include the threat of cartels who might be armed, there is nothing to suggest that threat amounts to a formidable invasion.
Like previous courts have said, invoking the Invasion Clause is a political ploy not a legal strategy.
We never know how courts will react anymore but it’s likely Abbott’s actions would be rejected if he did take steps to further militarize immigration enforcement and take jurisdiction away from the federal government.
Unfortunately, harm can be done in the meantime, and immigrants can be unlawfully arrested. Not to mention the political narrative itself is insidious and harmful to any reasonable response to immigration. Asylum seekers are often traumatized. They don’t need to be met with a response as if they are trying to invade.
It might be something we all want to think about the week of Thanksgiving.
Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.