"Invasion" and the Border
Michael Ramsey
In light of the developing situation between the Biden administration and the Governor of Texas regarding the border, here are some previous Originalism Blog materials:
Robert Natelson and Andrew Hyman have this article posted on SSRN: The Constitution, Invasion, Immigration, and the War Powers of States (Br. J. Am. Leg. Studies 13(1) (2024)). Here is the abstract:
By express and implied reservation, the Constitution permits states to wage defensive war and take other military action in response to invasion, insurrection, and transnational criminal gangs. This article examines the under-researched area of state war powers and how they interact with federal military and other foreign affairs powers. It also recovers the meaning of the Constitution’s term “invasion” and demonstrates that several judicial decisions have construed that term far too narrowly. The article ends with reflections on justiciability and remedies in state warpower cases.
Robert Natelson also had a series of essays in the Epoch Times based on the article, which Andrew Hyman summarized on this blog here, here and here.
At Volokh Conspiracy, Ilya Somin has several posts expressing an opposing view from an originalist-oriented perspective; the most recent is here: Texas Gov. Greg Abbott Doubles Down On Dangerous Claim that Immigration is "Invasion".