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  • U.S. vs TX, Forget Invasion, It’s the Tenth Amendment

U.S. vs TX, Forget Invasion, It’s the Tenth Amendment

William L. Kovacs

May 2024

U.S. vs TX, Forget Invasion, It’s the Tenth Amendment

Litigation between Texas and the United States over Texas’s right to defend itself by securing its border with Mexico from the onslaught of illegal immigration addresses momentous yet unexplored constitutional issues. Can Texas defend itself? Can the federal government force Texas to absorb the financial and social cost of illegal immigration?

While U.S. Supreme Court precedent finds these types of disputes non-justiciable political questions to be resolved by Congress, there is legal precedent under the Tenth Amendment that likely shifts the responsibility for and cost of illegal immigration from Texas to the federal government.

Has Texas been invaded? Texas hangs its cowboy hat on two provisions of the Constitution, Article I, section 10 (“Compacts clause”) and Article IV, section 4 (“Guarantee Clause”). The Compacts Clause prohibits states from engaging in war unless the state is invaded or “in such imminent danger as will not admit of delay.” The Guarantee Clause mandates that the United States guarantee each state a Republican form of government and “protect each of them [states] against invasion.

The Keyword in both clauses is “invade,” or derivations of the term.

The few etymologists dissecting these terms conclude that millions of illegals entering the U.S. is not an invasion. A study by The Tenth Amendment Center traces the term from the first English dictionary in 1755 to the present. The term “invasion” has been consistently characterized as a foreign military power equipped with weapons intending to commit physical violence against another country.

A Texas Public Policy Center study, “The Meaning of Invasion Under the Compact Clause of the U.S. Constitution” (2022) study concluded that when the Constitution was drafted, the term “invade” involved two core concepts: entry and enmity (intent to act in armed conflict). The Foundation’s definition of invasion includes state and non-state warfare that seeks to” overthrow the lawful sovereignty of the state.” Under this reasoning, cartel activities could be an “invasion” if Texas can establish violent intent to challenge its sovereignty.

The Supreme Court has been reluctant to address cases involving the Compact and Guarantee Clauses. In Luther v. Borden, 1849, the court was asked to determine the lawful claimant to the Rhode Island government due to an insurrection. The court held the Guarantee Clause is a legislative power residing in Congress; therefore, it is a non-justiciable political question.

In 1912, corporations in Oregon argued that a state law authorizing initiatives and referendums violated the Guarantee Clause since it allowed a popular vote, which is contrary to a Republican form of government. The Supreme Court again held the issue to be a political question. In 1956, Congress delegated its powers to resolve violent conflicts to the President.

In 2023, Texas sought to void Department of Homeland Security (“DHS”) enforcement guidelines. Texas argued that by prioritizing the arrest and removal of noncitizen suspected terrorists, DHS violated federal law by not arresting and removing a more significant number of illegal immigrants. The court dismissed the case for lack of standing since DHS did not prosecute any of the states litigating the issue.

To avoid defeat, Texas could assert its Tenth Amendment rights: “powers not delegated to the U.S. by the Constitution, nor prohibited to the States, are reserved to the States respectively, or to the people.” While the Supreme Court generally dismisses 10th Amendment cases by finding implied constitutional powers to support almost all federal actions, it has recognized limits to federal power over states.
In a 1992 case, New York vs. U. S., the Supreme Court chiseled a Tenth Amendment path for states to defeat claims of federal authority. In that case, Congress enacted legislation mandating that states dispose of all low-level nuclear waste generated within the state or take title to all the waste, including liability for its long-term disposal.

The court held that while Congress had the authority under the Commerce Clause to regulate low-level nuclear waste, it only had the power to regulate the waste directly. As such, Congress sought to commandeer New York’s legislative process, a power that violates the 10th Amendment.

The Federation for American Immigration Reform estimates that illegal immigration costs states $116 billion annually and Texas $13.4 billion annually.

Similar to New York v. U.S., the federal government is de facto commandeering state legislative and appropriation processes by making states responsible for the cost of managing federal immigration policy. While the Supreme Court may view controversies under the Compacts and Guarantee clauses as non-justiciable, it cannot avoid federal actions forcing states to assume the massive cost of illegal immigration. If the federal government has the sole power to regulate immigration, as it claims, it must exercise such power directly and pay for it.

William L. Kovacs, author of Devolution of Power: Rolling Back the Federal State to Preserve the Republic. His previous book, Reform the Kakistocracy, received the 2021 Independent Press Award for Political/Social Change. He served as senior vice president for the U.S. Chamber of Commerce and chief counsel to a congressional committee. He can be contacted at [email protected]

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  • Constitution Guarantees Defense of Invaded States, So Do It! 

Constitution Guarantees Defense of Invaded States, So Do It! 

William L. Kovacs

October 2021

Constitution Guarantees Defense of Invaded States, So Do It! 

Biden’s refusal to enforce our national immigration laws or control illegal immigration across an open Southern border immediately harms the health, welfare, economic and civic fabric of Texas and Arizona. As millions of more illegals cross the open border and settle in all parts of the U.S., they will need costly social services in a nation massively in debt. Drug cartels, sex traffickers, and organized crime are disrupting cities and the drugs are killing hundreds of thousands of Americans. Biden’s failure to defend Texas and Arizona today is a breach of our Constitution’s Article IV Guarantee Clause. Over time, Biden’s failure to defend the border states will break the bonds of the union.

Article IV of the U.S. Constitution, its “Guarantee Clause,” mandates the United States, as an entity, to guarantee every state a Republican form of government and to protect each of them against invasion. Unfortunately, Article IV is likely the least analyzed and litigated provision in the Constitution. First, the Supreme Court in Luther v. Borden, (1849), held the guarantee of a Republican form of government is a non-judiciable, political question to be decided by Congress. This decision has allowed Congress to ignore the issue for 173 years.  Second, until now, there has never been a need for the federal government to defend a state from invasion.

Since every state in the union elects its officials, all qualify as “Republican forms of government.” There is no need to address this issue., The question arises, however, what constitutes an invasion that triggers the federal government’s duty to protect states?  Is Biden’s open southern border policy allowing millions of immigrants to illegally enter this county, sufficient to constitute an invasion? More than a few members of Congress call it an invasion.

Unlike other provisions in the Constitution that assign responsibilities to specific branches of government, Article IV mandates the entire federal government, all three branches, act to protect states that are invaded. Scholars assert the Guarantee Clause, “… exist[s] solely for the benefit of the guaranteed sovereign [states]. If the millions of illegal immigrants flowing into the U.S. is an invasion, the Constitution obligates Congress, the courts, and the Executive to act. While the president should be the lead since the Executive controls the military, Biden has not only abdicated his responsibility; he has encouraged the illegal invasion. As such, Congress and the courts, are obligated to act. Congress could immediately declare the invasion a war and send the military to close the border. Congress could also implement laws that require employers to only hire citizens and authorized holders of work permits, to cut off part of what is attracting the illegals. Additionally, Congress could withhold appropriations sought by the president until he enforces the law, or the House could impeach and the Senate convict the president, thereby removing him from office.

The courts could expedite lawsuits on the issue and hold non-compliant administration officials in contempt. “Jail time for politicians” would catch the attention of these oath breakers.

The difficulty, however, in determining whether there is an invasion on the southern border, is neither the Constitution nor federal statutes define “invasion.” There is scant discussion of the issue in the Federalist Papers or the records of the Constitutional Conventions, other than the founders’ expressions of support for the provision. Moreover, since the issue has never been litigated, there is no judicial guidance. Therefore, determining what is an “invasion” involves understanding and resolving any differences between the meaning of the term in the late 18th century and today

What is an invasion?

Around the time of the Constitution, 1787, “…the English language lacked a widely-used set of standard definitions on English words.” The 1785 version of Samuel Johnson’s History of the English Language, defined the word “invasion” as the hostile entrance upon the rights or possessions of another; or hostile encroachment; or armed invasion.

Today’s Cambridge Dictionary defines “invasion” as an army using force to enter and take control of another country, or an occasion when a large number of people come to a place in an annoying and unwanted way; or an action that affects someone’s life in an unpleasant and unwanted way.

Since no one knows what the founders intended, both definitions are broad enough to find the uncontrolled illegal immigration of millions of people into this country to be an invasion. The support for this assertion is that if the U.S. is a nation, it must possess sovereignty, the ability to operate with international independence, and the right and power to regulate its internal affairs without foreign interference. Uncontrolled, massive influxes of foreigners, drug smugglers, and sex traffickers is a country lacking sovereignty.

 Early commentaries discuss the federal government’s duty to defend invaded states

The earliest of the commentaries to address Article IV is “Blackstone’s Commentaries: with Notes of Reference (1803) by St. George Tucker.  He was a Virginia jurist, professor of law at the College of William & Mary and his Commentaries were the first annotations of the Constitution. In Volume I, Miscellaneous Provisions, his notes on the Guarantee clause:

The possibility of undue partiality in the federal government in affording its protection to one part of the union in preference to another, which may be invaded at the same time, seems to be provided against, by that part of this clause which guarantees such protection to each of them. So that every state which may be invaded must be protected by the united force of the confederacy.

While the millions of illegal immigrants may cross at the southern border, they distribute themselves nationwide. Since Biden ceased construction of the border wall and refuses to enforce the Immigration laws,  his policies place Texas and Arizona, at greater risk of harm than interior states. This is a perfect example of the federal government showing bias against one part of the union, the Republican-leaning red states, clearly the concern of our founders.

 

Failure to enforce immigration law a breach of officials Oath of Office?

The president, every member of Congress, and every judge takes the original, 1787, oath to uphold the Constitution and laws of the U.S. and to faithfully discharge the duties of the office. While some officials cynically believe the oath is a hollow formality, the swearing of the oath is both their first act as a government official and required before being allowed to serve.

While our government officials have discretion in how they discharge their duties, they cannot refuse to discharge all of their duties in a particular area of great concern to the nation. While a president can, for example, pardon specific individuals, a president cannot abolish all law that makes certain actions a crime. Biden’s actions on the southern border demonstrate a refusal to discharge his oath to faithfully execute valid immigration laws passed by Congress. While the president violates his constitutional duties, Congress and the judiciary sit and watch the undefended southern border, a failure of the entire federal government to support the Constitution.

It is unacceptable to place the border states at risk of being overrun by millions of illegals that state governments cannot manage or support. An open border tears the fabric of society apart. It makes governing impossible. Our federal government is watching the proverbial pot boil until the content rises up and flows over the edge causing a mess. The edge in this instance is civil society. The mess is an inability to govern millions of illegal people operating in-country. The pot is boiling. If the federal government fails to turn the heat down by protecting the southern border, it risks the pot boiling over into dramatic conflict.

 

William L. Kovacs, author of Reform the Kakistocracy: Rule by the Least Able or Least Principled Citizens, Winner of the 2021 Independent Press Award for Social/Political Change. Former senior vice president, U.S. Chamber of Commerce.