Texas Border Fight Floats an Odd Legal Argument
The clash over a river barrier at Eagle Pass came to the Fifth Circuit, which failed to refute the Lone Star state’s most alarming claims.
Disputed.
Photographer: Brandon Bell/Getty ImagesIn the continuing skirmish between Texas and the United States, the feds just took another loss. This week, a sharply divided US Court of Appeals for the Fifth Circuit rejected the Biden administration’s legal effort to force the state to dismantle the 1,000-foot-long barrier it had placed in a section of the Rio Grande often used for illegal border crossings.
Although those crossings are a big and often ugly political issue, the court’s decision was narrow. Yet beneath what appears to be humdrum statutory interpretation lurks a far more explosive issue the judges chose not to touch: whether illegal immigration constitutes an “invasion” under the Constitution — an all-too-common claim in today’s political rhetoric.