Immigration Is Not Invasion - Prof. Ilya Somin

Prof. Ilya Somin, Mar. 25, 2024

"Texas’s argument equating the two goes against the text and original meaning of the Constitution, and would set a dangerous precedent if courts accept it. ... In two important cases currently before the U.S. Court of Appeals for the Fifth Circuit, the state of Texas has advanced the argument that illegal migration and drug smuggling qualify as an “invasion” authorizing the state to “engage in war” in response, under Article I of the Constitution. So far, federal courts have uniformly rejected such claims. But if they were to accept them, drastic consequences would follow. Border-state governments would be empowered to attack neighboring countries, even without congressional authorization. And the federal government would have the power to suspend the writ of habeas corpus—thereby detaining people without due process—almost anytime it wants. In addition to these practical considerations, Texas’s “invasion” argument is at odds with the text and original meaning of the Constitution. ... Legal issues aside, the drumbeat of rhetoric equating drug smuggling and immigration and invasion also has dangerous political implications. An invasion is the kind of thing to which governments usually respond with overwhelming force. The more people assume immigration and drug smuggling are equivalent to an invasion, the greater the likelihood there will be political pressure for such draconian measures as killing migrants, family separation (which Trump may seek to revive if he returns to power), and the idea of invading Mexico to fight the war on drugs more effectively. At the very least, “invasion” rhetoric moves the Overton Window on such proposals in the wrong direction. Court decisions may not be able to have much impact on these political dynamics. But judicial rejection of Texas’s “invasion” argument can at least forestall the danger of letting border states initiate war anytime they want, and giving the federal government a nearly unlimited power to suspend the writ of habeas corpus."