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United States v. Abbott and State War Powers
A guest post from Professor Rob Natelson.
Last week, the en banc Fifth Circuit resolved the buoy case. I am happy to pass on this guest post from Professor Robert Natelson, who co-authored an article on the war powers of the states.
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On July 30, the U.S. Court of Appeals for the Fifth Circuit ruled that the district court should not have granted the United States a preliminary injunction ordering Texas to remove a barrier lying in the Rio Grande River. The case was United States v. Abbott, and it was decided on the issue of navigability. However, the case also has implications for states' power to wage defensive war—and particularly defensive war against illegal immigration.
Andrew T. Hyman and I recently published an examination of those issues in the British Journal of American Legal Studies. We focused mostly on Founding-era evidence of the kind probative of the Constitution's original meaning. Our article played a role in the case—but, as described below, a rather unusual one.
The Parties' Contentions
The State of Texas had placed a 1000-foot floating barrier in the Rio Grande near Eagle Pass, Texas, a busy border-crossing area. The state justified the barrier by invoking state war powers to stem an "invasion."
The U.S. government claimed that Texas's power to respond to the alleged "invasion" had expired. The government also maintained that the state right of self-defense had been qualified by the congressional Rivers and Harbors Appropriation Act of 1899, which forbids obstructing navigable waterways without federal consent. (The Constitution grants Congress jurisdiction over navigable waterways as a component of the Commerce Power.)
Texas countered that under traditional navigability tests, the Rio Grande was not, and never had been, navigable above the city of Roma, Texas—far downstream from the Eagle Pass floating barrier.
State War Powers
The Constitution granted federal officers and entities, as well as the government itself, certain enumerated powers. As confirmed by the Tenth Amendment, it reserved the remainder to the states and the people. Moreover, where the Constitution did not specify that federal authority was exclusive, the states retained concurrent, although subordinate, jurisdiction.
Among the concurrent powers reserved to the states was the prerogative of making war. However, Article I, Section 10, Clause 3 limited that prerogative considerably:
No State shall, without the Consent of Congress . . . keep Troops, or Ships of War in time of Peace . . . or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
In international law terms, Congress could authorize state participation in offensive war. But states retained unconditional power to wage defensive war.
As our study pointed out, this clause retained a balance between federal and state war-making that was approximately the same as that prevailing under the Articles of Confederation.
But only approximately. The Constitution added one further constriction and four expansions of state war powers. Specifically, the Constitution (1) denied state power to issue letters of marque and reprisal—an additional restriction on offensive war but (2) discarded the former limitations on states' ability to wage defensive conflicts.
The Constitution also granted the federal government supreme power to regulate immigration (Article I, Section 8, Clause 10). However, states also retained subordinate concurrent power over that subject. This was recognized in the portion of Article I, Section 9, Clause 1 that referred to free migration as opposed to the importation of slaves: "The Migration . . . of such Persons as any of the States now existing shall think proper to admit . . . .".
Mr. Hyman and I investigated the Founding-era meaning of "invasion" and "invaded" to determine if, as three U.S. appeals courts have opined, those terms were limited to formal attacks by foreign military forces. We found they certainly were not. Both 18th century dictionaries and contemporaneous usage supported definitions broad enough to encompass peaceful but unauthorized cross-border incursions that resulted in damage. For example, in the years before the Constitution was written, both Benjamin Franklin and Pennsylvania officials referred to a peaceful but unauthorized wave of immigration into their state as an "invasion."
We also learned that during the Founding era, migrants entering a country illegally were considered, or treated as, "alien enemies." They were not accorded the same rights as "alien friends." It made no difference whether an illegal migrants' country of origin was friendly or hostile.
Finally, we examined Founding-era international law to determine the sorts of tools a sovereign may use to fight a defensive war. Not surprisingly, these included barriers to thwart invaders.
So based on our findings, it appeared that Texas was on sound constitutional ground when invoking its defensive war powers to justify building a barrier—at least until one considers the Rivers and Harbors Appropriation Act.
The Court's Decision
Under that law, if the Rio Grande is "navigable" at the point where Texas constructed its barrier, then a conflict arises between congressional exercise of the Commerce Power and state exercise of defensive war powers.
In United States v. Abbott, the court avoided that conflict. In an opinion written by Judge Don R. Willett, the court concluded that the Rio Grande was not navigable in the area of the barrier, because the river above the city of Roma had never been a "highway of commerce." Although there was some evidence that a ferry had crossed the river near Eagle Pass, Judge Willett held that ferries crossing rivers merely cover gaps in land routes. A ferry may indicate that a lake is navigable, but "Lakes are obviously not rivers."
Chief Judge Priscilla Richman concurred in the decision, but would have left open the possibility that adequate proof of a ferry route could show navigability.
Judge Ho's Opinion
Judge James C. Ho wrote a concurring-and-dissenting opinion focusing on the state right of self defense. He argued that the U.S. government's request for a preliminary injunction should have been dismissed because when a state, in good faith, claims it has been invaded and invokes its war powers, the legality of its decisions are non-justiciable political questions:
Supreme Court precedent and longstanding Executive Branch practice confirm that, when a President decides to use military force, that's a nonjusticiable political question not susceptible to judicial reversal. I see no principled basis for treating such authority differently when it's invoked by a Governor rather than by a President. If anything, a State's authority to "engage in War" in response to invasion "without the Consent of Congress" is even more textually explicit than the President's.
In Judge Ho's view, however, "good faith" decision making is a prerequisite to non-justiciability. In this respect and in some other respects, his analysis is similar to ours. We wrote:
"Insurrection" and "invasion" not only trigger the federal government's duty under the [Guarantee] Clause, but also trigger exercise of state war powers. If the terms are too vague for courts to define for federal purposes, then they also are too vague for courts to define for state purposes. If [Guarantee] Clause cases are held to be non-justiciable because the Constitution commits the decision of whether and how to protect states against invasion to the political branches of the federal government, then the Constitution even more clearly commits (as demonstrated by the Self-Defense Clause) the determination of whether a state has been "Invaded" or in "imminent Danger" to the state government. If redressibility issues impede justiciability in [Guarantee] Clause cases, then they could also impede justiciability when a state has gone onto a war footing and raised an army.
To be clear: If federal officials are proceeding in good faith to crush an insurrection or repel an invasion, the courts should not second-guess their tactics. But judicial intervention is appropriate when federal officials utterly neglect their duty or adopt measures so plainly insufficient as to demonstrate a lack of good faith effort.
Judge Ho's concurrence matched our conclusions in another respect as well: Both he and we doubted whether a federal law, even if clearly contradicting the right to state self-defense, could take priority over that right. ("[F]ederal statutes," he wrote, "ordinarily must give way to federal constitutional rights.") This makes sense: Self-defense is inherent in sovereignty, and the Supreme Court has defended less important aspects of state sovereignty from otherwise-valid congressional action. Examples include the protection of a state's decision on where to locate its capital and protection of state officials from federal "commandeering."
Judge Andrew S. Oldham also concurred, primarily to dispute Judge Ho's foray into constitutional issues. Judge Oldham rested his conclusion solely on a finding of non-navigability.
The Dissents
In his dissent, Judge Stephen A. Higginson argued that the federal government should be able to rely on ferry traffic across a river to prove the river's navigability.
Judge Dana M. Douglas's dissent challenged the majority's evidentiary conclusions on navigability, maintaining that the federal government had presented ample evidence that the Rio Grande near Eagle Pass qualified as navigable. She also concluded that once Congress has an opportunity to respond to an invasion, state war powers cease:
Clause 3 provides that a state may engage in war without consent of Congress only when it is "actually invaded, or in such imminent Danger as will not admit of delay." . . . See, e.g., Articles of Confederation of 1781, art. VI, para. 5 (limiting a state's power to engage in war "till the united states in congress assembled can be consulted"); Robert G. Natelson & Andrew T. Hyman, The Constitution, Invasion, Immigration, and the War Powers of States, 13 Brit. J. Am. Legal Stud. 1, 17 (2024) (noting that, in regard to state war powers, the Constitution resulted in "a balance between federal and state prerogatives roughly similar to that under the Articles of Confederation") . . . .
In other words, because the scope of state war power under the Constitution is roughly equal to the scope under the Articles, and because the Articles required consultation and/or consent by Congress, then state war power under the Constitution is similarly limited.
Unfortunately, the publication she relied on—ours—directly contradicted her conclusions. We wrote that under the Articles of Confederation, states "retained virtually unlimited flexibility to engage in defensive land war—even after Congress had been consulted—except for power to strike pre-emptively at non-Indian enemies."
More importantly, we found that the Constitution had removed the Articles' constraints on state defensive war:
[O]n the land side, the Constitution preserved general state control over their militias while providing that "No State shall, without the Consent of Congress . . . keep Troops . . . in time of Peace . . . or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." This limitation omitted the Articles' contingent requirement of consultation with Congress. (Italics added.)
We have written to Judge Douglas advising her of the discrepancy.
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Rob Natelson is senior fellow in constitutional jurisprudence at the Independence Institute in Denver and a former constitutional law professor at the University of Montana. He is the author of "The Original Constitution: What It Actually Said and Meant" (3rd ed., 2015).
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It was up the professors to do the laborious historical research to uncover peaceful immigration meanings for the word “invasion”.
I suppose if I expressed “admiration” of Biden, they would go back to the 18th century when “admiration” meant “horror” and argue that I was anti-Biden.
The Texas officials who use the word “invasion” did not do historical research. They mean it in the modern sense of arrival of “vermin” (following Trump’s use of the word), e.g., “an invasive species”.
Two words: Tet Offensive.
You argue that wasn’t an invasion.
“We also learned that during the Founding era, migrants entering a country illegally were considered, or treated as, “alien enemies.” They were not accorded the same rights as “alien friends.” It made no difference whether an illegal migrants’ country of origin was friendly or hostile.”
Pretty much says it all right there.
You notice how he says “migrants entering a country” rather than the “migrants entering the United States“? That’s not an accident; that’s because what he says isn’t true of the U.S.
On the other hand, the Alien & Sedition Acts distinguished between alien enemies and alien friends in the U.S. — and in fact did so based on whether the country of origin was friendly or not.
Right, the United States isn’t a country!
Good one!
I trust that when unwelcomed strangers walk through your open door and set up camp in your living room, you won’t tell the police your home has been invaded.
Of course not. Trespassing is well understood as is breaking and entering. Words have meaning.
Here’s a word: Hyperbole.
Well if we are going to use tradition and History, this isn’t the first time Texas responded to an invasion from Mexico. Look up The Alamo, Goliad, San Jacinto.
I hardly think Texas would have agreed to join the Union if they thought they were leaving themselves helpless from another invasion from Mexico.
I hate laws which are so easily bypassed.
All a foreign army has to do then is come over the border as disorganized individuals, even in uniform. No formal attack until they’re well inside the country. No problem!
* The Constitution does not enumerate immigration control as part of the government’s authority. Naturalization yes, immigration no.
* But people who own border property are entirely within their rights stopping trespassers, shooting them if necessary, just as any other unwanted trespasser.
* The solution is obvious. Those who care about immigration should buy border property and oppose or welcome trespassers according to their own inclinations. But welcomers beware! Opposers may well buy the property next to yours and oppose trespassers, and now you have to deal with all those immigrants yourself.
All a foreign army has to do then is come over the border as disorganized individuals, even in uniform. No formal attack until they’re well inside the country. No problem!
…I think you’ve answered your own question.
I didn’t ask a question. You didn’t answer anything. In tennis, that would be called love-love, I think.
It doesn’t take a professor of law or history to appreciate that a state could be in “imminent danger” by the mass trespass of illegal populations determined to resettle in a neighboring country. In fact, murders/rapes, fentanyl, social services fraud and other economic ills turn the “could” into “are.”
None of that is true.
No murders by illegals? No rapes? No fentanyl problems? No fraud? No masses wanting to resettle? What the f is untrue?
You need to realize the threshold for a *state* being in imminent danger.
And also realize that the definition of a state makes that a near incoherent concept.
The Constitution doesn’t require “a *state* being in imminent danger” of anything except an invasion. Natelson and Hyman provide evidence that our southern states are experiencing an actual invasion.
But congratulations on demonstrating yet again that you can’t read!
I guess you didn’t read Rivas original post.
Too busy confirming your priors I guess.
Actually the threshold is quite low.
Long after Texas became a state, and long after the civil war, there was a extensive history of informal border crossings over this very same Rio Grande Border.
Look at the 1915 Bandit War as an example, and has clear echoes in today’s Border Cartels:
“The Bandit War, or Bandit Wars, was a series of raids in Texas that started in 1915 and finally culminated in 1919. They were carried out by Mexican rebels from the states of Tamaulipas, Coahuila, and Chihuahua. Prior to 1914, the Carrancistas had been responsible for most attacks along the border, but in January 1915, rebels known as Seditionistas drafted the Plan of San Diego and began launching their own raids. The plan called for a race war to rid the American border states of their Anglo-American population and for the annexation of the border states to Mexico[citation needed]. However, the Seditionistas could never launch a full-scale invasion of the United States and so the faction resorted to conducting small raids into Texas. Much of the fighting involved the Texas Ranger Division, but the US Army also engaged in small unit actions with bands of Seditionist raiders.”
In fact, you do not have a right to shoot people just for trespassing.
In fact, you presuppose your conclusion.
“You don’t have that right because you don’t have that right.”
Or to put it in terms a statist might possibly understand: every single law is backed by the ultimate threat of death from a government cop.
If a trespasser doesn’t leave, the same logic applies.
You going with some natural rights formulation?
‘Who cares how the real world operates; rights are a universal thing and I decide what they are.’
Because under American law, shooting people for trespass is not a great plan.
No, s/he is just stating the obvious point that if a law-breaker chooses to escalate, the police or the landowner are entitled to out-escalate them, as necessary.
Read the thread.
DMN says ‘In fact, you do not have a right to shoot people just for trespassing.’
SGT pushes back on no uncertain terms about deadly force being on the table in his mind.
I agree he started not saying that; but he appears to be the kind of poster who doubles down.
Doubling down? Here? That’s shocking.
Nope, you are wrong, as usual. Ducksalad is right.
Don’t come back with some nonsense about cops are special and are just enforcing public safety or some such horseshit.
Supposedly government was created by the people to secure natural rights. Remember that document?
If I don’t have the right to shoot trespassers who don’t leave when I tell them to, how can I have delegated that right to government?
Nope, you’re just plain wrong.
Ducksalad thought your thesis was NOT that you have the right to shoot trespassers.
You sure do think that. And have a whole conception of political philosophy that ignores baseline necessities for a state as laid out back in the day by Hobbes and Weber.
Go ahead and check your flag for fringes, but maybe your arguments don’t belong in a blog that talks about actual US law.
Uh… cops also don’t have the right to shoot trespassers.
What a bloodthirsty lot. Pretty gross.
You haven’t! What makes you think cops have the legal right to do so either?
SGT did qualify it with “if necessary”.
“necessity” as defined by someone who calls illegal immigration an “invasion” is a highly malleable concept prone to convenience.
In Texas? Not just for trespassing, but the aggravating factors necessary to get you from “trespassing” to “can be shot” are a lot less in Texas than most states.
Art. I, sec. 9:
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
If Congress had no power over immigration, I’m unsure why this provision was necessary.
OTOH, logically, the provision implies Congress does have the power to regulate the “migration” of persons into the United States. Immigration will factor into commerce with foreign nations and other constitutional powers, including treaties.
Perhaps lawyers have a different understanding of “import”. You import property, ie slaves. People come of their own free will. That clause is for slaves only, and everyone then understood it.
That’s why it said “Migration or Importation”, you know. Only the latter part of that formulation applied to slaves.
I’ve read that back when the BoR was proposed, there were concerns that listing specific things Congress could not do might be construed to imply that they had powers to do whatever was not prohibited.
Can I suggest you’re doing some construing? If the authors intended Congress to have power over migration, why wasn’t included in the enumerated list in Article I, and instead implied in this indirect way?
In the case of slavery, it’s obvious: it fell under the commerce power.
Yes, I have read that too, and the shabby treatment of the 9th and 10th Amendments bears that out.
Leftists believe that the enumerated powers are just examples of the kinds of things afforded the State by the near unlimited grant of power to promote the general welfare.
They believe the Federal Government can do virtually anything so long as a bureaucrat has good intentions and believes their action promotes the welfare of someone. In this country or in any other for that matter. The General Welfare Clause isn’t scoped by citizenship or borders.
I have seen a lot of lawyers make that quibble. I have also seen a lot of quotes from the Founders and Framers that did not support that interpretation at the time. And considering that the first immigration laws weren’t enacted until (I think) the 1880s, I put a lot more weight on those early interpretations than on the more recent ones.
Oh, you’ve read a few academic papers on the matter? cute. i have read over 100000 posts.
[hat tip to wint]
How many do you think you actually understood?
I’d say the “original public meaning” of this clause was very clearly commercial importation of slaves, and nothing but that.
The text does not “very clearly” show that. OPM is only one factor involved when interpreting the Constitution.
Slaves are “imported.” Free people “migrate.” The clause separates the two things, a tax referenced only for importation.
At the time, states had broad power to regulate immigration. This was recognized later in cases such as N.Y. v. Miln.
The Kentucky Resolutions (1798) “resolves” that the clause also applies to the “migration of alien friends.”
The text is carefully phrased so that it does not expressly only apply to slavery. The original public meaning at the time took that into consideration.
Sure, states had broad power to regulate immigration. That (alone) doesn’t mean the federal government has that power.
There is a list of enumerated powers in Article I and immigration isn’t listed. Why would a federal immigration power be created in this indirect way? That’s not “careful” phrasing, it’s just sloppy.
“You can’t rob a bank today” in no way implies you’re allowed to rob a bank tomorrow.
Sure, states had broad power to regulate immigration. That (alone) doesn’t mean the federal government has that power.
Okay. Didn’t say otherwise. It helps explain why a reference to “migration” would be understood to include free people migrating.
There is a list of enumerated powers in Article I and immigration isn’t listed.
There is an enumerated provision in the text that implies that Congress has power over immigration.
Every congressional power is not expressly listed in so many words. Some are subsets of enumerated powers. Multiple enumerated powers involve immigration.
“You can’t rob a bank today” in no way implies you’re allowed to rob a bank tomorrow.
If there was no power to rob banks at all, there would not be a need to expressly say you are unable to do so for a set number of years. The implication is that Congress DOES have the power but it could not be used until 1808.
A short time after the Constitution was written the allegedly “very clear” text was understood not to only apply to slavery.
Went and did some reading. So….I have concede there was quite a bit of debate about this exact point in the 1790s, and therefore “very clear” is just my opinion.
What I’ve read is that states that wanted to encourage voluntary migration were worried that Congress might stop it, so they pushed to cover “migration” as well as importation. I don’t think that means they wanted to authorize Congress to take that away from them starting in 1808.
Went and did some reading. So….I have concede
Kudos for this.
In the same way founding era dictionaries and lexicons show that “arms” had a broad meaning focused on the upper limbs.
The upper limbs are necessary for military service, as one without “arms” is certainly useless – if for no other reason than he cannot render a proper salute; therefore the right to “keep and bear arms” – given contemporary sources for meaning of the word “arms’ – that the federal government can’t cut your arms off as a punishment; and every man has the right to go out without wearing shirt sleeves.
(Since some are a little slower: If you are going to go with random usage of the term “invasion” in random contexts; then we need to go with the contemporary and common use of the word “arms” to determine the meaning of the Second Amendment. When a woman in 1790 asked her son, “Did you wash your arms”, she wasn’t talking about his firearms.)
This. It’s terrible weak sauce what JB is doing here. The question here isn’t “was this word ever used in any way back then which might apply to this current situation” but whether that meaning was what the people who wrote the law were thinking of when they wrote it.
FWIW I think the border is one of the issues the Democratic Party has been very bad at, until recently. But that’s a policy issue, not one to be solved by such weak-sauce meaning hunts.
As much as I love a good Blackman bashing, he didn’t write this. He’s passing it along.
” . . . the federal government can’t cut your arms off as a punishment . . . . ”
Not so sure about that now.
Louisiana now allows surgical castration to be used as a punishment for sex crimes.
That’s one way to describe the law. Harsh!
Another way to spin it is a three-to-five year early release from prison for convicts who volunteer for the procedure. Mollycoddling!
Good analogy. The paper devotes a lot of space to showing that the meaning of the word “invasion” has not changed. Then and now, the word has a bunch of (related) meanings. Then and now, when the topic of discussion is war, the word “invasion” refers to a military invasion.
Is Rob Natelson welcome at the Montana law campus these days?
Is he still a fervent advocate for affirmative action (for disaffected clingers)?
What entitles Natelson to the honorific “Professor” (after Montana tossed him off campus)? Is that like the misfits who insist on calling former president and convicted felon Trump “the president?”
No free swings, clingers.
If the federal government started conducting regular canoe travel along the relevant stretch of water, how would Natelson scramble to defend the xenophobic arguments?
I wonder if Florida could loan Texas any alligators?
That’s the sentiment that could incline the culture war’s winners to stop being magnanimous toward the conservative losers.
Prohibiting hunting on public lands.
Outlawing most possession of firearms.
Taxing churches and all bigoted institutions.
Criminalizing bigoted conduct.
Universal health care featuring early-stage abortions.
Withdrawing accreditation and funding from nonsense-based schools (those that suppress science to flatter silly superstition, for example).
See you down the road apiece, clingers.
Um… states aren’t a co-equal branch of government.
Get out of here, Brits, you don’t know what you’re talking about.
They were, originally, when state governments elected Senators. That changed with the popular vote.
Are you just trolling with the most inane garbage you can think up, to see if anyone bites?
What is surprising about the “invasion” issue is the number of historical references to “invasion” of Southern states by displaced bands of Spanish soldiers, Indians tribesmen, outlaws, resulting in states’ legislation, calls for Federal government assistance and yes self help. The borders were not always clearly mapped, Spanish deserters roaming about, break off groups of lawless Indian trouble seekers. All contradicting prevalent theories of armed invasion.
“Spanish soldiers, Indians tribesmen, outlaws”
How are these typical instances a problem regarding “prevalent theories of armed invasion”?
I don’t think the idea is that only an invasion of an official foreign army is required. The rebel bands from Mexico in the 1910s count as would diffuse Native American attacks.
The concern is that undocumented immigrants are not the sort of “invasion” at issue here.
There’s some evidence on both sides here, but one thing I’m pretty sure of: if we get to a point where a Democrat governor doesn’t want buoys in his river and President Trump wants them, most everyone involved would instantly reverse themselves on navigability and questions of federal supremacy.
Why would they need to reverse positions? A state governor doesn’t need the waters to be navigable in order to refrain from obstructing them, while the federal government doesn’t need a section of the border to be unnavigable in order to erect border fortifications.
Whether the stretch is navigable simply ceases to be relevant if the positions are exchanged, it doesn’t invert it’s implications.
Fair enough. They’d suddenly lose interest in what they previously pretended is an important point, rather than a random technicality.
More generally, wouldn’t you agree that the original point of giving the feds authority over navigable waters was to facilitate navigation rather than obstruct it?
the federal government doesn’t need a section of the border to be unnavigable in order to erect border fortifications
Since you brought it up, and you seem to be in favor of implied powers, at least in this case: What do you think about the following text in Article I: “purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings”. Doesn’t this imply that the feds do NOT have authority to construct fortifications without the consent of the state government?
“More generally, wouldn’t you agree that the original point of giving the feds authority over navigable waters was to facilitate navigation rather than obstruct it?”
Yes, I would argue exactly that. At least, within the United States.
“Doesn’t this imply that the feds do NOT have authority to construct fortifications without the consent of the state government?”
You skipped over the preceding words, and they’re important:
“To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of Government of the United States, and to exercise like Authority over all Places”
This clause demonstrates that, in order for the federal government to have exclusive jurisdiction over a location within a state, it has to have been purchased with that state’s consent. Otherwise it is just an ordinary property owner, state laws continue to apply in that location.
That doesn’t mean the federal government can’t buy property without the consent of a state, or even exercise the power of eminent domain. I means that state laws will continue to be applicable in that place.
Isn’t the entire clause merely meant to give the feds general police powers (as opposed to only the previously enumerated ones) on federal land?
Are you saying that the feds ability to prosecute, say, speeding or public intoxication in a national park, hinges on whether at some point the state legislature authorized that?
It is, yes, but only such land as is purchased with the permission of a state legislature. The legislature has to consent to ceding it’s sovereignty over that land. No consent, no ceding of sovereignty.
And, yes, I’m saying exactly that. Not that the federal courts actually care about that clause, of course.
Then it’s an odd phrasing.
You’re saying it’s consent to concede sovereignty, but the text is consent to the purchase.
Not only is it a weird way to phrase it, it leaves no room for a state to be OK with the purchase but not to giving up sovereignty, which one could imagine a state wanting to keep back then, e.g. to avoid post offices turning into sanctuaries or ersatz bordellos.
Maybe a good question for the lawyers here: is there any situation in modern criminal law where a court would go back to some documents from 150 years ago to see if the land was acquired with or without the legislature’s consent?
In common understanding it’s just a question of whether or not it’s federal property.
(Follow up) I’m well aware that since Reconstruction federal courts have ruled that eminent domain is an inherent power of any sovereign, and that it’s now a routine practice.
I’m skeptical of declaring a bunch of stuff inherent when there’s an explicit list of powers provided.
The 5th amendment says in relevant part, “nor shall private property be taken for public use, without just compensation.”
Without the power of eminent domain, you would not need this clause, because after all, who would give their property to the government without just compensation if they had a choice about giving it? The very guarantee implies that property CAN be taken without consent, if due process of law is followed and compensation paid.
(Everything below is, of course, how I think it ought to be, fully understanding things have gone horribly in the other direction.)
Without the power of eminent domain, you would not need this clause
Let’s not mix up state consent with individual property owner consent.
The “need” for the compensation clause would be to (a) protect property owners in DC and the territories, where the feds have full police powers and can therefore do eminent domain, and incidentally (b) protect property owners in places where a state legislature has consented to allow the feds to acquire land.
The Constitution grants Congress jurisdiction over navigable waterways as a component of the Commerce Power.
Huh. That suggests We The People, and the Several States, granted the new government this power to keep the trade routes open, promoting the general welfare.
So why is it being used to get in the way of keeping the trade routes open, as when fights to stop the dredging of a harbor 5 feet deeper, to accommodate new Superpanamax ships, was tied up in court for longer than it took to dig the Panama Canal, of construction story fame?
It’s ironic this power, in its intended form, could indeed be used to shut down Texas, with the simple observation people coming over the border counts as trade, not as people being traded, but as exchange, no weasel wording necessary.
Because the Constitution gave Congress a general regulatory power, not a power limited to doing only those things you happen to think worth doing. The power over navigable waterways is a distinct enumerated power. A general power. This idea that it’s only a power to promote commerce is simply your fantasy.
It’s the same with the commerce power itself. IUnder your theory, Congress couldn’t outlaw anything. It would only have the power to PROMOTE interstate commerce in say, gambling and prostitution, never to suppress it.
But a general regulatory power is a power to suppress things Congress in its discretion thinks bad, not just a power to facilitate things you think good. The navigable waters power is no different from the commerce power in this respect. Congress has the same power to suppress navigation it thinks harmful as it does to promote navigation it thinks good.
You’re right, but only because – as in so many other cases – the authors failed to see how badly their words would be abused in the future.
If a bunch of convention delegates in 1787 had said “let’s give the national government the authority to shut down your ports” the clause never would have made it into the document.
Likewise with the commerce clause. The intent was to prevent states from engaging in trade wars among themselves or independently undermining federal trade negotiations with foreign countries.
That is an implausible interpretation of their intent. If they wanted to prevent the states from doing stuff rather than to permit the feds to do stuff, then why did they phrase it as a power granted to Congress rather than as a limitation on state power?
They certainly knew how to say the latter — see Article 1, Section 10, Paragraph 2 — but they didn’t do that.
“why did they phrase it as a power granted to Congress”
Perhaps to allow the national government to negotiate things like, “we won’t ban French brandy if France won’t ban American cotton goods, otherwise we’re not letting in your brandy”. The limits on states are so the feds could make good on the first part, the federal power is necessary to enforce the second part.
If the Constitutition had considered surpressing unwanted immigration to be within the war power, why did it expressly give the United States the power to prohibit it (after 1808)? And why did it NOT give that power before 1808?
Wouldn’t the broad war power granted the United States have covered everything? What did the clause add under this theory?
I guess the argument (not that I agree with it) would be that the war power did grant the power to suppress immigration, and that’s exactly why the 1808 clause was needed – to create a temporary exception to that power.
Every single one of these pro-invasion types would sing the opposite tune if parties involved were Israel and Palestinians.
But appeals to hypocrisy don’t move these types. Their principles are hierarchical and not universal.
Of course if millions of Palestinians were illegally entering Greater Palestine, it’s an invasion and Israelis at all levels of community can defend themselves and their borders.
Of course if millions of who-knows-where illegals can enter the US illegally, and no one has a right to defend themselves, and some extremists like Open Borders Ilya would argue that extends all the way up to the federal government.
So-called extremist open border advocates have no problem with you defending yourself if an illegal is invading your personal property. Hell, we’re even OK with you defending yourself if the person is here legally!
Roaming around on other people’s property to hunt down people who haven’t used any violence against you? Screw that. No.
Roaming around on public property to hunt them down? We’ll vote on it, and if it so happens you lose and the open border guys are in charge, you’ll just have to go pound sand.
I would not call Israel’s immoral, unlawful campaign in the West Bank an invasion. It is ample reason for the United States to enable Israel to try to operate without American support, though.
I’m with you Rev! Screw those Talmudians! You and I together can stop the Talmudic Menace!
Recall President Bad Ass’s famous fist-pumping chant under a hail of bullets? FIGHT! FIGHT! FIGHT!
That was our Bat Signal!
Let’s Roll!
Trump, the Volokh Conspiracy, and this asshole. The modern Republican Party.
The Suspension Clause of the Constitution authorizes suppressimg the Writ of Habeas Corpus during an invasion. In Duncan v. Kahanamoku, the Supreme Court construed the meaning of the term “invasion” when it decided whether the writ had been lawfully suspended at the time Kahanamoku was arrested. It concluded that, while the Pearl Harbor attack was a genuine invasion and the initial suspension was lawful, at some point in the years afterwards the imvasion threat had receded, so by the time that Kahanamoku was arrested, the suspension had become unconstitutional.
While I think the right of state self-defense remains viable, I think it is reserved for emergency situations similar to what would justify suspending the writ of haveas corpus. And I think the meaning of “invasion” given in Duncan applies.
Perhaps a quintessential example of a modern situation where state invocation of its residual defensive war power would be fully legitimate would be 9/11. The federal government was woefully unprepared for what happened. A state like New York would be fully entitled to take matters into its own hands and attempt to shoot down a plane or do some similar military response itself if it had been able to.
While I think the right of state self-defense remains viable, I think it is reserved for emergency situations similar to what would justify suspending the writ of habeas corpus.
Yes, that’s the best interpretation.