Earlier today, US Court of Appeals Fifth Circuit The court ruled against Texas, where the federal government contested the legality SB 4’s immigration law.  SB 4 This new state law criminalizes unauthorized immigration, expands the powers of state law enforcement officials to detain undocumented immigrants, and gives Texas court the power to order removal for migrants convicted under this law.

The decision today is not a final judgment on the merits. Technically, it only upholds the district court’s preliminary order blocking enforcement of the law pending a final ruling in the case. The “likelihood” of success is one of the factors that courts use to decide whether a preliminarily injunction should be granted. In analyzing that factor the judges made it clear that SB 4 was in fact illegal and Texas deserved to lose.

The majority opinion by Chief Judge Priscilla Richardman in the Fifth Circuit focuses primarily whether SB 4 is preempted under federal immigration laws. She concludes, for example, that the law’s detention and removal provisions conflict with federal laws that grant many undocumented immigrants the right to remain in America while they apply asylum.

The majority also rejected Texas’s argument that the state had the power to enact SB 4 since illegal migration and drug smuggling across the border qualify as “invasion”:

Texas asserts that Article I, § 10 of the Constitution (the State War Clause) permits
Some applications of S. B. 4. The State War Clause:

No State shall, without 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.

Texas claims that S. The application of S. B. 4 to transnational cartels is a constitutionally-authorized response to an “invasion.”

Texas has not shown why it should be allowed to vacate the preliminary injunction. The Constitution’s text, structure, history, and other factors provide strong evidence that federal laws addressing noncitizen entries and removals are still supreme, even when the State War Clause is triggered. Such statutes do not pertain to laying any duty of tonnage; keeping troops or ships of war in time of peace; or entering into any agreement or compact with another state or a foreign power….

Texas has not cited any authority that supports its claim that the State War Clause gives it the right to enact state immigration legislation otherwise preempted under federal law. One would have expected a commentator of the time to have made a note of 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 passed over without remark…”

We cannot say that Texas has convinced us that the State War Clause shows it is likely to be successful on its merits.

Thus, the Fifth Circuit  rejected Texas’s Invasion Clause argument (the clause in question is also sometimes called the “State War Clause”).  I believe this is the correct result for reasons that I outlined here. A recent Lawfare The article below explains how to get started.You can also find me on my Amicus Brief The following are some examples of how to use United States v. AbbottTexas has made the same argument in another case before Fifth Circuit.

The Fifth Circuit’s discussion is brief and superficial, and does not always make the correct 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 could include detaining or deporting citizens of the enemy country from which the migrants originated.

The Fifth Circuit was right to conclude that Texas had “failed to provide authority” to support the proposition that Texas’ State War Clause would allow it to enact or enforce state immigration laws that are otherwise preempted federal law. There is no evidence that illegal migration or drug smuggling are “invasion.” The original meaning of the text Those who do so are deemed to be a threat.. A state that faces such issues could have a variety of problems. It has not been “actually invaded.”

The Fifth Circuit reached the correct conclusion regarding invasion questions. District Court The analysis of the relevant issues was much more thorough and accurate.

Judge Andrew Oldham submitted a lengthy dissenting opinions, the majority of which was devoted to preemption issues and the argument that SB 4 may be legal for at least some applications. Interestingly, he does NOT consider the “invasion’ argument, other than to briefly note that it was rejected by the district courts.

If you’re keeping score, Chief Justice Richman was appointed by George W. Bush. Judge Irma RAMIrez, who joins her opinion, was appointed by Biden recently. Judge Oldham, who was appointed by Trump, is one of the more conservative judges in the Fifth Circuit.

SB 4 will likely remain blocked for a while, even if litigation continues. This—for the moment—concludes a saga in which the Fifth Circuit imposed a temporary “administrative stay” on the district court injunction, the Supreme Court Refusing to lift itFifth Circuit It was dissolved within hoursInjunctions are left in place while the court considers them.

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

Litigation will continue in this case. But today’s ruling strongly suggests the Fifth Circuit—like the district court—is inclined to rule against Texas on the merits. This too could be reviewed by either the Fifth Circuit en banc or the Supreme Court.

The Fifth Circuit will hear the “invasion issue” again in United States v. AbbottThe. Hearings in the en banc court (with all 17 active judges participating) on April