More on Why Immigration is not “Invasion”
I have previously criticized Texas’s badly flawed argument that illegal immigration and cross-border drug smuggling qualify as an “invasion,” thereby triggering the state’s constitutional authority to “engage in war” in response (see also here). Prominent legal scholars Frank Bowman (Univ. of Missouri) and Steve Vladeck (Univ. of Texas) have recently posted articles on the same topic, at Just Security and Lawfare, respectively.
Bowman offers a detailed originalist critique of the invasion argument, surveying a number of relevant founding-era sources:
Throughout the Constitutional Convention and the state ratification debates that followed, delegates and commentators used the term “invasion” over and over. With a handful of exceptions where “invasion” is used metaphorically, as when referring to an “invasion of rights,” the word invariably refers to a hostile armed incursion into or against the territory of the states or the nation, an incursion that must be met with a military response….
Section 10 of Article I reserves to the national government exclusively the conduct of foreign policy. It also prohibits states from maintaining regular armies and navies in time of peace, and absolutely bars them from “engag[ing] in War, unless actually invaded, or in such imminent danger as will not admit of delay.”
In other words, the constitutional response to “invasion” is “war.” Section 10, when read together with the provision of Article I, Section 8, that grants Congress the power “to declare war,” confers the responsibility for national defense – for making war – on the national government. The Constitution leaves only one narrow exception for emergencies in which states can “engage in War” if they are “actually invaded” or under imminent threat of invasion or a “Danger” so great that it would merit war in response….
At no point in the Constitutional Convention or any of the state ratification debates does anyone, except when speaking metaphorically, employ “invasion” to describe a non-violent, non-military event…..
More to the present point, absolutely no one at the Constitutional Convention or the state ratification debates used the word to connote the peaceful movement of immigrants (lawful or otherwise) from one country to another.
I discussed the original meaning of “invasion” here, highlighting (among other things) James Madison’s unequivocal statement that “Invasion is an operation of war.”
Vladeck recognizes (correctly, I think), that an attack by nonstate actors could qualify as an invasion, but notes that does
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