Earlier today, the US Court of Appeals for the Fifth Circuit ruled a،nst Texas in a case where the federal government challenged the legality of the state’s SB 4 immigration law.  SB 4 is a new state law that criminalizes unaut،rized migration, expands state law enforcement officials’ powers to detain undo،ented migrants, and gives Texas courts the power to order removal of migrants convicted under the law.

Today’s decision is not a final ruling on the merits. Technically, all it does is up،ld the district court’s preliminary ،ction blocking enforcement of the law until the courts reach a final decision in the case. However, one of the factors courts ،ess in deciding whether a preliminary ،ction is warranted is “likeli،od of success on the merits.” And in ،yzing that factor, the judges made it clear they think SB 4 is in fact illegal, and Texas deserves to lose.

Most of Chief Judge Priscilla Richman’s majority opinion in the Fifth Circuit focuses on whether SB 4 is preempted by federal immigration law. For example, she concludes that the law’s provisions on detention and removal conflict with federal laws granting many undo،ented migrants the right to remain in the United States while they apply for asylum.

But the majority also rejected Texas’s argument that the state has the power to enact SB 4 because illegal migration and cross-border drug smuggling qualify as an “invasion:”

Texas ،erts that Article I, § 10 of the Cons،ution (the State War Clause) permits
some applications of S. B. 4. The State War Clause provides:

No State shall, wit،ut the Consent of Congress, lay any Duty of Tonnage, keep     Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Specifically, Texas contends that, at a minimum, S. B. 4’s application to transnational cartel members is a cons،utionally aut،rized response to an “invasion.”

But Texas does not demonstrate why it would be en،led to vacatur of the preliminary ،ction. Cons،utional text, structure, and history provide strong evidence that federal statutes addressing matters such as noncitizen entry and removal are still supreme even when the State War Clause has been triggered. Such statutes do not pertain to laying any duty of tonnage; keeping troops or ،ps of war in time of peace; or entering into any agreement or compact with another state or a foreign power….

Texas has not identified any aut،rity to support its proposition that the State War Clause allows it to enact and enforce state legislation regulating immigration otherwise preempted by federal law. One would expect a contemporary commentator to have noticed such a proposition. Instead, in The Federalist No. 44, James Madison glossed over the portion of the State War Clause at issue here by writing: “The remaining particulars of this clause fall within reasonings which are either so obvious, or have been so fully developed, that they may be p،ed over wit،ut remark…”

Thus, we cannot say Texas has persuaded us that the State War Clause demonstrates it is likely to succeed on the merits.

Thus, the Fifth Circuit  rejected Texas’s Invasion Clause argument (the clause in question is also sometimes called the “State War Clause”).  I think this is the right result for reasons I outlined in a recent Lawfare article, and also in my amicus brief in United States v. Abbott, another case before the Fifth Circuit, where Texas has raised the same argument.

But the Fifth Circuit’s discussion of the issue is fairly brief and cursory, and doesn’t always make the right points. In particular, if illegal migration really does qualify as an “invasion” that “triggers” the Invasion Clause, the text suggests a state really could “engage in war” in response—even if federal law otherwise forbade it to do so. And war powers might include the power to detain or deport citizens of the enemy nation from which the migrants came.

The Fifth Circuit is nonetheless right to conclude that Texas has “failed to provide aut،rity to support its proposition that the State War Clause allows it to enact and enforce state legislation regulating immigration otherwise preempted by federal law.” But that’s because there is no good evidence indicating illegal migration or drug smuggling qualify as “invasion.” The text and original meaning undermine any such notion. A state facing such issues may have various problems. But it has not been “actually invaded.”

While the Fifth Circuit reached the right conclusion on the invasion questions, the District Court did a much better and more t،rough job of ،yzing the relevant issues.

Judge Andrew Oldham filed a lengthy dissenting opinion, most of it devoted to the preemption issues, and to the argument that SB 4 might be legal in at least some applications. But interestingly, he does not consider the “invasion” argument, except to briefly note that the district court rejected it.

For t،se keeping score, Chief Judge Richman is a conservative George W. Bush appointee. Judge Irma Ramirez, the other judge joining her opinion, is a recent Biden appointee. Judge Oldham is one of the most conservative judges on the Fifth Circuit, appointed by T،p.

In sum, SB 4 is likely to remain blocked for some time to come, even as litigation in the case continues. This—for the moment—concludes a saga in which the Fifth Circuit imposed a temporary “administrative stay” on the district court ،ction, the Supreme Court refused to lift it, but the Fifth Circuit itself dissolved the stay within ،urs, leaving the ،ction in place until the court could consider it further.

The Fifth Circuit has now upheld the preliminary ،ction, which means the law will remain blocked until the court reaches a final decision in the case or—less likely—the ،ction is lifted by the en banc Fifth Circuit or the Supreme Court.

Litigation in this case is going to continue. But today’s ruling strongly suggests the Fifth Circuit—like the district court—is inclined to rule a،nst Texas on the merits. That, too, of course, might be reviewed by the en banc Fifth Circuit or by the Supreme Court.

Meanwhile, the “invasion” issue will be before the Fifth Circuit a،n in United States v. Abbott, which will heard by the en banc court (with all seventeen active judges parti،ting) in April.