CU, CUF and TPC File Amicus Brief in U.S. v. Texas
CU, CUF and TPC File Amicus Brief in U.S. v. Texas
CU, CUF and TPC File Amicus Brief in U.S. v. Texas
24-50149
444444444444444444444444
In the
United States Court of Appeals for the Fifth Circuit
________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
STATE OF TEXAS; GREG ABBOTT, in his official capacity as Governor of Texas;
TEXAS DEPARTMENT OF PUBLIC SAFETY; STEVEN C. MCCRAW, in his official
capacity as Director of Texas Department of Public Safety,
Defendants-Appellants.
________________________________
LAS AMERICAS IMMIGRANT ADVOCACY CENTER; AMERICAN GATEWAYS;
COUNTY OF EL PASO, TEXAS,
Plaintiffs-Appellees,
v.
STEVEN C. MCCRAW, in his official capacity as Director of Texas Department of
Public Safety,
Defendants-Appellants.
________________________________
On Appeal from the United States District Court
for the Western District of Texas
_______________
Brief of Amici Curiae America’s Future, Gun Owners of America, Inc., Gun
Owners Foundation, Gun Owners of Cal., Tennessee Firearms Association,
Tennessee Firearms Foundation, Citizens United, Citizens United
Foundation, The Presidential Coalition, The Senior Citizens League, U.S.
Constitutional Rights Legal Defense Fund, and Conservative Legal Defense
and Education Fund in Support of Defendants-Appellants and Reversal
________________
J. MARK BREWER WILLIAM J. OLSON*
Johnson City, TX JEREMIAH L. MORGAN
MICHAEL BOOS ROBERT J. OLSON
DANIEL H. JORJANI WILLIAM J. OLSON, P.C.
Washington, DC 370 Maple Ave. W., Ste. 4
JOHN I. HARRIS III Vienna, VA 22180
Nashville, TN (703) 356-5070
PATRICK M. MCSWEENEY wjo@mindspring.com
Powhatan, VA Attorneys for Amici Curiae
RICK BOYER March 13, 2024
Lynchburg, VA *Counsel of Record
444444444444444444444444
Case No. 24-50149
UNITED STATES,
Plaintiff-Appellee,
v.
Defendants-Appellants,
persons and entities as described in the fourth sentence of Fifth Circuit Rule
28.2.1 have an interest in the outcome of this case. These representations are
made in order that the judges of this Court may evaluate possible disqualification
or recusal.
2
America’s Future, Gun Owners of America, Inc., Gun Owners
Constitutional Rights Legal Defense Fund, and Conservative Legal Defense and
Michael Boos, Daniel H. Jorjani, John I. Harris III, Patrick M. McSweeney, and
Pursuant to Federal Rules of Appellate Procedure 26.1 and 29(c), and 5th
Circuit Rule 28.2.1, it is hereby certified that Amici Curiae America’s Future,
The Senior Citizens League, U.S. Constitutional Rights Legal Defense Fund, and
i
/s/ William J. Olson
William J. Olson
Attorney of Record for Amici Curiae
ii
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
ARGUMENT
iii
B. Texas’ History of Responding to Border Invasions with
Military Force Demonstrates Texas’ Constitutional Right to
Defend Itself . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
iv
TABLE OF AUTHORITIES
Page
U.S. CONSTITUTION
Article I, Sec. 8, cl. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Article I, Sec. 8, cl. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Article I, Sec. 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Article I, Sec. 10, cl. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 16, 30
Article II, Sec. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 28
Article VI, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Amendment X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Amendment XXV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
STATUTES
5 Stat. 797 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
8 U.S.C. § 1101(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
8 U.S.C. § 1325 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Tex. Code Crim. Proc. Art. 5B.002 . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Tex. Penal Code § 51.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
CASES
Alden v. Me., 527 U.S. 706, 714 (1999) . . . . . . . . . . . . . . . . . . . . . 12, 14
Arizona v. United States, 567 U.S. 387 (2012). . . . . . . . . . . . . . . . 5, 12, 13
Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135 (1892) . . . . . . . . . . . . . . . 4
Gregory v. Ashcroft, 501 U.S. 452 (1991) . . . . . . . . . . . . . . . . . . . . . 6, 14
Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92
(1938) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Marbury v. Madison, 5 U.S. 137 (1803) . . . . . . . . . . . . . . . . . . . . . . . . 11
Missouri v. Biden, 83 F.4th 350 (5th Cir. 2023). . . . . . . . . . . . . . . . . . . . 29
United States v. Butler, 297 U.S. 1 (1936) . . . . . . . . . . . . . . . . . . . . . . . 15
MISCELLANEOUS
American State Papers: Military Affairs (William S. Hein & Co., Inc.
1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9
B. Blankley, “51st Texas county declares invasion at southern border,”
TheCenterSquare.com (Jan. 25, 2024) . . . . . . . . . . . . . . . . . . . 17, 18
v
L. Cacciatore, “Seven More States to Send National Guard to Texas
Border,” TexasScorecard.com (Feb. 12, 2024) . . . . . . . . . . . . . . . . 18
T. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon
the Legislative Power of the States of the American Union (1868) . . . . 15
The Debates in the Several State Conventions on the Adoption of the Federal
Constitution (Jonathan Elliot ed., 2d ed. 1836) . . . . . . . . . . . . . . . . 8
E. de Vattel, The Law of Nations (B. Kapossy & R. Whatmore eds. 2008) . . 5
Federalist No. 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Federalist No. 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Federalist No. 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
A. Fletcher, “The First Calling Forth Clause: The Constitution’s
Non-Emergency Power to Call Forth the Militia to Execute the
Laws,” 13 J. NAT’L SECURITY L. & POL’Y. 1 (2022) . . . . . . . . . . . . 7
M. Fox, “The U.S. national debt is rising by $1 trillion about every 100
days,” CNBC (Mar. 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
P. Hamburger, “Beyond Protection,” 109 COLUM. L. REV. 1823
(Dec. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
K. Housler, “25 Republican Governors Release Joint Statement in Support
of Texas,” Tennessee Star (Jan. 25, 2024) . . . . . . . . . . . . . . . . . . . 17
A. Hyman, “What The Constitution’s Framers Really Meant By
‘Invasion’” Daily Caller (Jan. 30, 2024) . . . . . . . . . . . . . . . . . . . . 23
Madison’s Debates, July 20, 1787, The Avalon Project . . . . . . . . . . . . 28, 29
J. Mazzone, “The Security Constitution,” 53 UCLA L. REV. 29 (Oct. 2005) . 7
R. Natelson, “Understanding the Constitution: How States May Respond
to Illegal Immigration, Part I,” Epoch Times (Jan. 8, 2024) . . . . . . . . 22
R. Natelson and A. Hyman, “The Constitution, Invasion, Immigration,
and the War Powers of States,” forthcoming in Br. J. Am. Leg.
Studies (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 24
S. Nelson, “White House won’t say if Biden family’s China biz is
‘security issue,’” New York Post (Aug. 18, 2023). . . . . . . . . . . . . . . 29
“Pancho Villa,” History.com (Nov. 9, 2009) . . . . . . . . . . . . . . . . . . . . . 20
R. Reilly, “Biden won’t be charged in classified docs case; special counsel
cites instances of ‘poor memory,’” NBC News (Feb. 8, 2024) . . . . . . . 30
Report of U.S. House Special Committee on Texas Frontier Troubles
(Feb. 29, 1876) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
J. Rippy, The United States and Mexico (Alfred A. Knopf: 1926) . . . . . . . . 18
vi
J. Sandos, “The Plan of San Diego: War & Diplomacy on the Texas Border
1915-1916,” ARIZONA AND THE WEST (Spring 1972) . . . . . . . . . 19, 20
A. Scalia and B. Garner, Reading Law (Thomson West: 2012) . . . . . . . . . . 15
C. Shor, “Mitch McConnell is out of step with the majority of
Americans,” Cincinnati.com (Dec. 15, 2023) . . . . . . . . . . . . . . . . . 29
A. Syal, M.D., “As Biden’s memory issues draw attention, neurologists
weigh in,” NBC News (Feb. 10, 2024). . . . . . . . . . . . . . . . . . . . . . 30
Texas Dep’t of Public Safety, “Texas Criminal Illegal Alien Data” . . . . . . . 17
C. Todd, “Poll: 68% of voters have worries about Biden’s mental and
physical health,” NBC News (June 27, 2023). . . . . . . . . . . . . . . . . . 30
J. Tierney, Chasing Ghosts: Unconventional Warfare in American History
(Potomac Books: 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
United Nations, Declaration 29, 2030 Agenda for Sustainable
Development (Sept. 25, 2015) . . . . . . . . . . . . . . . . . . . . . . . . 26, 27
UN Global Issues, International Migration . . . . . . . . . . . . . . . . . . . . . . . 27
vii
INTEREST OF AMICI CURIAE1
The Senior Citizens League, U.S. Constitutional Rights Legal Defense Fund, and
which work to defend constitutional rights and protect liberties. The Presidential
On December 18, 2023, Texas Governor Greg Abbott signed SB4 into
law, making illegal entry across the Texas border a criminal offense, punishable
agrees to return to the country from which he entered the United States.
immediately challenged by the United States based on the Supremacy Clause and
1
All parties have consented to the filing of this amici curiae brief. No
party’s counsel authored the brief in whole or in part. No party or party’s
counsel contributed money intended to fund preparing or submitting the brief.
No person other than amici, their members, or their counsel contributed money
intended to fund preparing or submitting this brief.
1
the Dormant Commerce Clause. See United States v. Texas, 2024 U.S. Dist.
LEXIS 36721 (W.D. Tex. 2024) (“Texas”). On February 29, 2024, the district
injunction (United States v. Texas, 2024 U.S. App. LEXIS 5175 (5th Cir.
Court’s order (thus allowing the district court’s injunction to go into effect) until
March 13, 2024 at 5:00 pm (EDT), while the Supreme Court considers whether
to allow the injunction of SB4 to remain in effect. United States v. Texas, 2024
U.S. LEXIS 1209 (2024). On March 12, 2024, Justice Alito extended the
ARGUMENT
that it shares with the national government — a power that was never yielded
2
recognizes Texas’ power to do more than exclude — to engage in war — if
In broad terms, SB4 criminalizes the entry into Texas at any place other
than a lawful port of entry by an “alien” as defined under federal law — “any
However, Texas law authorizes that for any such person against whom there are
no other charges pending, and who is not a repeat immigration offender, the
judge has authority to dismiss the charges if the person agrees to return to the
foreign nation from which the person entered the country. See Tex. Code Crim.
Proc. Art. 5B.002. Under Tex. Penal Code § 51.02, Texas allows affirmative
defenses, including where (i) the defendant has lawful presence; or (ii) asylum
federal interests, SB 4 violates the Supremacy Clause.” Texas at *8, *38. The
2
Under Section 1325, “Any alien who ... enters or attempts to enter the
United States at any time or place other than as designated by immigration
officers...” commits a federal crime.
3
court asserted the national government has “‘broad, undoubted power over the
The primary power in this area vested in the national government is set out
foreigner, and clothing him with the privileges of a native citizen.” Boyd v.
Nebraska ex rel. Thayer, 143 U.S. 135, 162 (1892). The Constitution never
once uses the word “immigration.” It never expressly vests any power in the
national government to regulate immigration. Yet the United States has this
and the state power over immigration are both drawn from the same source,
3
When the national government is unable to identify a specific power
granted to it in the Constitution, it often relies on some assortment of clauses,
which can be a “tell” that it possesses no such power.
4
B. The State of Texas Has the Same Inherent Authority to Protect
Its Borders as Does the U.S. Government.
Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 104 (1938). When Texas
entered the union in 1845, it did so “on an equal footing” with the other States.
5 Stat. 797. Thus, any analysis of State and national power here must begin with
the reality that there are two sovereigns in this case. “[T]he defining
territory people who have no right to be there.” Arizona v. United States, 567
U.S. 387, 417 (2012) (Scalia, J., dissenting). That was not only the opinion of
Vattel in his widely read and relied upon Founding-era treatise on The Law of
Nations as follows:
5
The people of each State compose a State, having its own
government, and endowed with all the functions essential to
separate and independent existence... [I]t may be not
unreasonably said that the preservation of the States, and the
maintenance of their governments, are as much within the design
and care of the Constitution as the preservation of the Union and
the maintenance of the National government. [Gregory v. Ashcroft,
501 U.S. 452, 457 (1991) (emphasis added) (internal quotations
omitted).]
coming across its border. The militia provided State governments with the
means to carry out that sovereign function. Founding-era State constitutions and
State statutes addressed the power of a governor to call out the militia to defend
their State’s borders. “[M]ost state executives during the War of Independence
authorized the governor to “be commander in chief [and to] expulse, repel, resist
and pursue by force of arms … every such person ... as shall ... in a hostile
4
P. Hamburger, “Beyond Protection,” 109 COLUM. L. REV. 1823, 1930
(Dec. 2009).
6
John Adams, had nearly identical language.5 New Jersey provided by statute,
be lawful for the governor ... to call out and array the Whole of the Militia ... as
he may think necessary to repel the Invasion, and to Restore the Peace of the
State.’”6 Pennsylvania and New York had similar statutes. Id. at 19-20.
limit the right of States to prevent aliens from unlawfully crossing their borders.
call[] forth the militia into federal employ to carry out the requirements of the
Protection Clause.... The remainder of the time, states are free to use their
sent to fight foreign wars, but to defend the state. George Nicholas directly
5
1780 Massachusetts Constitution, ConSource.com.
6
A. Fletcher, “The First Calling Forth Clause: The Constitution’s
Non-Emergency Power to Call Forth the Militia to Execute the Laws,” 13 J.
NAT’L SECURITY L. & POL’Y. 1, 19 n.104 (2022).
7
J. Mazzone, “The Security Constitution,” 53 UCLA L. REV. 29, 90
(Oct. 2005).
7
responded to Anti-Federalist Patrick Henry’s concern that the Constitution might
exclusive power:
the militia into state service to resist a British invasion and then requested federal
Secretary of War James Monroe responded to Strong, not to criticize his use of
State militia to resist invasion, but rather to state: “The measures which may be
8
Debate before the Convention of the Commonwealth of Virginia
(Statement of George Nicholas) (June 14, 1788), in 3 The Debates in the Several
State Conventions on the Adoption of the Federal Constitution at 391 (Jonathan
Elliot ed., 2d ed. 1836) (emphasis added).
8
as its own measures and not those of the United States — The expences attending
them are chargeable to the State and not to the United States.”9
Lest there be any doubt that the States retained sovereign power to defend
their borders, even to the point of waging War, the Invasion Clause expressly
reserves that power to the States: “No State shall, without the Consent of
Danger as will not admit of delay.” Article I, Sec. 10, cl. 3 (emphasis added).
“invasion” or “risk of imminent Danger,” the State may even engage in “War”
Powers Denied to the States) and was designed to clarify that the War power
expressly vested in Congress by Article I, Sec. 8, cl. 11 did not divest the States
9
Letter from James Monroe, Secretary of War, to Caleb Strong,
Governor of Massachusetts (Sept. 17, 1814), in 1 American State Papers:
Military Affairs at 614 (William S. Hein & Co., Inc. 1993) (emphasis added).
9
of the War power in the specified circumstances. There is nothing express or
implied in this clause that indicates that, short of waging war, the State’s inherent
Thus, this case does not turn on whether there was a military invasion into
Texas. Texas’ exercise of its power to exclude is modest and certainly cannot be
together with the greater authority to use force and violence, which that implies,
The district court enjoined the Texas statute on the ground, inter alia, that
This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme
Law of the Land.... [Article VI, cl. 2.]
on its own power. It does not negate the inherent powers of the States not
10
yielded to the national government (see Section I.A and I.B, supra). It certainly
has no bearing on powers expressly reserved to the States in the Constitution (see
Section I.C., supra). Texas law in no way conflicts with the constitutional
The Supremacy Clause does not claim — as the district court seemed to
rule — that the States are subordinate to the national government’s policy choices
in every respect. Where an inherent State power not yielded to the national
to the States, federal law — and federal policy choices — are powerless to invade
Texas makes no claim that its laws can trump contrary federal laws — it is
defending against a federal violation of its own sphere of authority. Texas’ claim
is not one of nullification, as the district court seemed to believe, but of defense
11
The federal system established by our Constitution ... reserves to
[the States] a substantial portion of the Nation’s primary
sovereignty, together with the dignity and essential attributes
inhering in that status.... [E]ven as to matters within the
competence of the National Government, the constitutional design
secures the founding generation’s rejection of “the concept of a
central government that would act upon and through the States” in
favor of “a system in which the State and Federal Governments
would exercise concurrent authority over the people who were, in
Hamilton’s words, ‘the only proper objects of government.’” [Alden
v. Me., 527 U.S. 706, 714 (1999) (emphasis added).]
The clearest explanation on this topic came from Justice Scalia, who
12
the Grand Convention would have rushed to the exits. [Arizona at
436 (Scalia, J., dissenting) (emphasis added).]
The district court explains the duty of the federal government to protect a
However, those are words on paper. We are living through a time when
the national government has refused to protect the States against invasion. The
district court misreads the existence of that obligation on the national government
federal government may respond.” Id. at *98. But the constitutional text wholly
undercuts the district court’s position. Nothing in the text of the Invasion Clause
the federal government says so. Nor does the Clause require States to submit to
13
an invasion if the federal government, through negligence or ill intent, refuses to
concurrent. See Alden and Gregory, supra. It neither terminates if the federal
The district court asserted that “if Texas were engaging in a war, it would
have to abide by federal directives in waging that war.” Texas at *71. The
district court’s speculation about both Texas and Congress exercising its War
power at the same time is completely irrelevant here, as the national government
has neither declared war, nor engaged in military action, nor even enforced its
immigration laws. If the national government were now to rush to protect the
southern border, there is little doubt that Texas would be pleased to have the
federal government assume its duties under the Guarantee Clause, but that issue
The district court’s decision renders the Invasion Clause a nullity. Under
its decision, if: (i) the national government refuses to defend a border; (ii) and
then, a state offers defense; (iii) but then, the national government declares that
14
no invasion exists; (iv) as a result, the State cannot act. This view negates the
state’s expressly recognized power and renders the Invasion Clause mere
To all practical effect, the district court reads the Invasion Clause to say
instead that “a state may not engage in War even if actually invaded if the
expressly specified that the consent of Congress was not required — giving the
they would not have been used.” United States v. Butler, 297 U.S. 1, 65 (1936).
As Thomas Cooley’s famous treatise put it, “the courts must ... lean in favor of
a construction which will render every word operative, rather than one which
The district court misreads the Invasion and Supremacy Clauses, reaching
the wrong conclusion. Texas possesses reserved sovereign authority to defend its
10
A. Scalia and B. Garner, Reading Law at 174 (Thomson West: 2012).
11
T. Cooley, A Treatise on the Constitutional Limitations Which Rest
Upon the Legislative Power of the States of the American Union at 58 (1868).
15
borders, without congressional permission, when an invasion exists. The
court’s position that the federal government is the sole determinant if an invasion
exists. Texas has the authority it needs. It has the permission it needs in the
The Biden Administration would have this Court make the State’s power to
even “engage in War” under Article I, Sec. 10, cl.3 subject to the approval of
the national government. However, the clause allows this power to be exercised
neither is that of the Executive or the Judiciary. Neither the district court nor
this court has authority to override Texas’ finding that it has been invaded.
16
A. The Objective Reality of the Border Invasion.
The district court blithely dismisses the crisis in Texas as though it did not
exist. But in fiscal year 2023 alone, nearly 2 million illegal aliens poured over
2023:
297,000 illegal aliens were charged with more than 509,000 criminal
offenses which included arrests for 940 homicide charges; 64,127
assault charges; 9,246 burglary charges; 59,936 drug charges; 1128
kidnapping charges; 25,441 theft charges; 39,694 obstructing police
charges; 2,912 robbery charges; 6,422 sexual assault charges; 7,410
sexual offense charges; and 6,193 weapon charges.13
right to defend against the invasion.14 Twelve governors pledged National Guard
12
B. Blankley, “51st Texas county declares invasion at southern border,”
TheCenterSquare.com (Jan. 25, 2024).
13
Texas Dep’t of Public Safety, “Texas Criminal Illegal Alien Data.”
14
K. Housler, “25 Republican Governors Release Joint Statement in
Support of Texas,” Tennessee Star (Jan. 25, 2024).
17
troops to defend Texas’ border militarily.15 Fifty-one Texas counties have
From its earliest days, Texas has repeatedly deployed State armed forces
by regular troops of the Mexican government or military. Ten years after the
Governor Richard Coke to appeal repeatedly to the federal government for help:
Mexican descent, ordering them to engage the Mexican bandits: “Should the
15
L. Cacciatore, “Seven More States to Send National Guard to Texas
Border,” TexasScorecard.com (Feb. 12, 2024).
16
Blankley, supra.
17
J. Rippy, The United States and Mexico at 292 (Alfred A. Knopf:
1926).
18
company be in close pursuit of thieves or marauders with their plunder, it will
follow as far as possible, whether on this side of the Rio Grande or the other.”18
When U.S. Attorney General George Williams questioned the legality of the
No state has surrendered the right of defense of its people in its own
way against aggressions from neighboring states or people.…
[I]nternational courtesy, comity, and amity have never been required
by the law of nations, carried to the romantic extent of surrendering
the great natural right of self-defense against the constant infliction
of serious, permanent, and wrongful injury upon the people of one
nation by those of another. [Id. at xvi.]
In the early 1900s, as Europe began to take up sides for World War I, the
18
Report of U.S. House Special Committee on Texas Frontier Troubles at
xv (Feb. 29, 1876).
19
territory comprising Texas, New Mexico, Arizona, Colorado, and
California.19
The U.S. Army played the primary role in putting down the “San Diego”
raids and the associated cross-border raids of Pancho Villa, which killed some 30
The deaths caused by Villa and the “San Diego” border raids, both in
terms of death toll and economic destruction, pale in comparison to the number
19
J. Sandos, “The Plan of San Diego: War & Diplomacy on the Texas
Border 1915-1916,” ARIZONA AND THE WEST at 8 (Spring 1972).
20
“Pancho Villa,” History.com (Nov. 9, 2009).
21
Id.
22
J. Tierney, Chasing Ghosts: Unconventional Warfare in American
History at 117 (Potomac Books: 2006).
20
apparently not until recent years has the authority of Texas to defend its border
The district court mocks Texas’ invasion defense, stating that “[t]o discuss
Texas at *71. The district court sought to build a historical case to show that the
Framers understood “invasion” only to mean an armed assault against one nation
by the organized military forces of another nation. But the court began with
“invasion” as the court wished to define it, then cited the 1828 Webster’s
descriptor of “invasion.” But Webster’s does not limit the term only to such
[Of] thirteen editions published between 1713 and 1789 ... [o]nly
one of the thirteen limited “invade” and “invasion” to formal
military incursions. The other twelve included the military
definitions, but also added definitions like “to intrude,” “to
21
encroach,” and “to enter in a hostile manner.” [And] “hostile”
usually meant only “without permission.”23
In Federalist No. 43, Madison wrote, “The latitude of the expression here
used [invasion], seems to secure each State, not only against foreign hostility, but
other words, “invasion” is a broad term with considerable latitude, not limited to
barbarians” as “invaders.” Madison did not view invasion as limited to the likes
of a D-Day or an Anzio.
writings of the Framers between 1776 and 1812 referring to “invasions,” which
invasions by the British during the War of Independence and the War of 1812,
threatened invasions by the French when the XYZ Affair nearly resulted in war,
and threatened invasions of Indian tribes. These events were the daily headlines
23
R. Natelson, “Understanding the Constitution: How States May
Respond to Illegal Immigration, Part I,” Epoch Times (Jan. 8, 2024). See also
R. Natelson and A. Hyman, “The Constitution, Invasion, Immigration, and the
War Powers of States,” forthcoming in BR. J. AM. LEG. STUDIES at 13 (2024)
(detailing the 13 dictionaries and their definitions of “invasion”).
22
the Framers faced between 1776 and 1812. It is quite unsurprising that their
letters referred to military invasions they faced, not mass invasions of millions of
aliens directed by drug cartels and abetted by foreign governments, which they
The district court failed to consider numerous historical evidences that the
Framers did not limit “invasion” solely to organized military actions. Before the
said would ‘divert the Connecticut Emigrants from their Design of Invading this
Province.’ [I]n 1783, the Pennsylvania legislature labeled the illegal Connecticut
migration. But “the invaded state could use force against the peaceful invaders,
Constitution did, and still does, refer in the disjunctive to “time of war or
invasion.”25)
24
A. Hyman, “What The Constitution’s Framers Really Meant By
‘Invasion,’” Daily Caller (Jan. 30, 2024).
25
MASS. CONST., Part the Second, chap. II, § 1, art. VII (emphasis
added).
23
“Invasion” need not refer to the organized military force of an opposing
and ambitious men intending ... to ... introduce anarchy, confusion, and every
Former Border Patrol Chief Rodney Scott testified to Congress that armed
Mexican drug cartels “control the border today ... because of this mass migration
26
Charles Carroll of Carrollton, Draft Speech for Maryland Convention,
Jan.-Mar., 1788, in 12 The Documentary History of the Ratification of the
Constitution 832, 856 (John P. Kaminski, et. al. eds., 1976-2023) (41 vols.)
27
“A Democratic Federalist,” PA. HERALD, Oct. 17, 1787, reprinted in
13 DOCUMENTARY HISTORY ... at 386, 391. See also 12 Journal of the
Continental Congress 1774-1789 (Gaillard Hunt ed., 1912) at 1006 (Oct. 13,
1778) (“repelling the invasions of the savages on the frontiers of New York,
New Jersey, and Pennsylvania”).
28
“Monitor,” Hampshire Gazette, Oct. 24, 1787, reprinted in 4
DOCUMENTARY HISTORY, supra ... at 116, 117.
29
R. Natelson and A. Hyman, “The Constitution, Invasion, Immigration,
and the War Powers of States.” Forthcoming in BR. J. AM. LEG. STUDIES 13
(2024) (detailing the 13 dictionaries and their definitions of “invasion”)
(footnotes within quoted text contained in original).
24
to a level that they’ve never had.”30 Arizona Senator Kyrsten Sinema stated that
“The cartels are ... controlling what’s happening on the southern border, not the
United States government.” Id. If armed cartels of foreign nationals control the
border and traffic aliens and drugs into the United States with impunity, it is
The Framers did not act without reason when they expressly made clear
that the States reserved their power to engage in war to defend against invasion,
despite vesting the War Power generally in Congress. Although Texas’ powers
had the President been enforcing the nation’s immigration laws and protecting the
nation’s southern border, there would have been no reason for Texas to enact
SB4.
30
House Homeland Security Committee Republicans, “‘Now nobody
crosses without paying:’ Senior Border Patrol agents describe unprecedented
cartel control at southwest border” (Dec. 14, 2023).
25
The national power and responsibility to enforce immigration law is vested
open the borders, neither a cabinet secretary nor Congress can do much to force
him, short of impeachment and removal, and an invasion does not allow for a
delayed response awaiting congressional action. The truth is that there has been
under the government’s view, no State can act when the President stands down.
A president can fail to enforce many laws without risking the collapse of the
nation, but a presidential failure to protect the border can have catastrophic
designed, that not just one, but two levels of government are charged with the
duty to protect the citizens of each State. The Framers reasonably anticipated
urged by the United Nations, that each nation must “recognize the positive
31
See generally House Oversight Committee, “Wrap Up: Biden
Administration’s Policies Have Fueled Worst Border Crisis in U.S. History”
(Jan. 17, 2024).
26
cooperate internationally to ensure safe, orderly and regular migration.” The
(Sept. 25, 2015) (emphasis added). The UN calls for nations to “[f]acilitate
orderly, safe, regular and responsible migration and mobility of people ...
through [im]migration policies.” Id. at Target 10.7 (emphasis added). See also
view could believe that our nation’s immigration laws impede internationalist
goals, and refuse to enforce them, believing they are not deserving of
enforcement.
Second, the President could conclude that massive immigration would lead
to a political advantage for his party. If Americans turn against his party, he
handouts, and unfamiliar with constitutional liberties, would improve his party’s
political chances.
unable to protect the nation from massive immigration. At present, our national
debt is $34.496 trillion. It is increasing about $1 trillion every 100 days. See
M. Fox, “The U.S. national debt is rising by $1 trillion about every 100 days,”
27
CNBC (Mar. 2024). It is possible that the President would chose to spend
limited funds on other matters, abandoning border security. At the same time, a
State might have a very different view, believing the enforcement of the border is
Fourth, the President could come under the influence of a foreign power.
This was the main interest of the Founders in requiring the President to be a
“natural born Citizen” (Article II, Sec. 1) who would have allegiance only to this
nation — not to the nation of the President’s parents or the place of the
President’s birth. It was also the reason for Article I, Sec. 9, which forbids any
“Person holding any Office ... without the Consent of the Congress, [to] accept
of any present, Emolument, Office, or Title, of any kind whatever, from any
28
[Madison’s Debates, July 20, 1787, The Avalon Project (emphasis
added).]
One would hope that evidence of bribery would lead to the impeachment
and removal process, but there are many reasons that Congress might remain
passive and decline to use the impeachment power, particularly since social
media — our national town meeting — has been shown to be often controlled by
the President’s administration. See Missouri v. Biden, 83 F.4th 350 (5th Cir.
2023). Moreover, there are many who believe that the Chinese government may
have acquired outsized access and influence over high-ranking persons in both
Fifth, the President could lose the mental capacity to properly exercise his
32
See generally S. Nelson, “White House won’t say if Biden family’s
China biz is ‘security issue,’” New York Post (Aug. 18, 2023) (“When asked if
the White House is concerned that the Biden family’s financial dealings with
China could compromise national security, after House Oversight Committee
Chairman James Comer (R-KY) expressed that ‘[w]e’re concerned that the
president is compromised because of the millions of dollars that his family has
received,’ White House spokesman Jake Sullivan replied only, ‘I don’t have any
comment on that’”); C. Shor, “Mitch McConnell is out of step with the majority
of Americans,” Cincinnati.com (Dec. 15, 2023).
33
Special Counsel Robert Hur recently declined to prosecute President
Biden for his mishandling of classified documents which “present serious risks to
national security,” as the President could be seen as an “elderly man with a poor
29
invasion cannot afford delay in response, and there are many reasons why the
Vice President and Cabinet would not want to use this power, at least until after
The Framers of our Constitution certainly did not believe that men were
angels. See Federalist No. 51, G. Carey & J. McClellan, The Federalist Papers
(Liberty Fund: 2000). Perhaps, Article I, Sec. 10, cl. 3 was written for a time
such as this.
CONCLUSION
30
Respectfully submitted,
PATRICK M. MCSWEENEY
3358 John Tree Hill Rd.
Powhatan, VA 23139
RICK BOYER
Integrity Law Firm
P.O. Box 10953
Lynchburg, VA 24506
31
CERTIFICATE OF SERVICE
Reversal, was made, this 13th day of March, 2024, by the Court’s Case
Management/ Electronic Case Files system upon the attorneys for the parties.
IT IS HEREBY CERTIFIED: