House Budget Chair Jodey Arrington Leads Amicus Brief in Support of Texas in US v. Texas

Rep. Jodey Arrington (R-Texas) speaks at a press conference on border security at the U.S. Capitol in Washington on Feb. 14, 2024. Kevin Dietsch/Getty Images

Federal officials cannot constitutionally prevent Texas authorities from protecting their citizens against the invasion of illegal immigrants crossing into the Lone Star State that President Joe Biden made possible on his first day in office in 2021, according to an amicus brief led by House Budget Committee Chairman Jodey Arrington (R-Texas) and joined by 45 House Republicans.

“Congress’s regulation of immigration cannot preempt a State’s valid invocation of its sovereign power, ‘without the consent of Congress,’ to ‘engage in War’ if  ‘actually invaded.’ To the extent that there is a conflict between Texas’s valid exercise of its constitutional war power and the Immigration and Nationality Act (‘INA’), it is the latter that must give way. To decide otherwise would read ‘without the consent of Congress’ out of the State Self-Defense Clause,” the representatives told the U.S. District Court for the Western District of Texas in the U.S. v. State of Texas in the brief, which was made public on Feb. 14.

The brief was quoting from Article 1, Section 10 of the Constitution:

“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.”

Another clause of the Constitution—Article IV, Section 4—requires the federal government to guarantee “to every State a Republican form of government” and to “protect each of them against invasion.” But when the federal government fails in its duty to protect a state against invasion, that state has the right of self-defense under the Constitution, the brief argues.

“Thus, the Founders foresaw the possibility that the federal government might not fulfill its obligation to protect the States from invasion and explicitly recognized the States’ inherent, retained power to defend themselves. Providently, the State Self-Defense Clause ensures that the Constitution ... is not a suicide pact,” the brief reads.

Federal officials have failed to protect Texas residents as an estimated 8 million illegal immigrants have been allowed to enter the country across the Rio Grande as a result of President Biden’s reversal of immigration policies that had been in force under his predecessor, President Donald Trump and which had dramatically slowed such immigration.

The federal court case was prompted by Texas Gov. Gregg Abbott signing into law Texas Senate Bill 4 (SB4) in December 2023. The measure “criminalizes illegal entry and reentry into the State from a foreign nation and authorizes state judicial officers to order offenders to return to the foreign nation from which they illegally entered,” according to the brief. State officials seeking to remove an illegal immigrant must turn the individual over to federal immigration officials at a U.S. Port of Entry.

A group of migrants are processed by Border Patrol after crossing the Rio Grande illegally near the highway outside Eagle Pass, Texas, on Feb. 4, 2024. Eagle Pass has become the epicenter of a conflict between Texas's Republican Gov. Greg Abbott and the Biden administration. Sergio Flores/AFP

The U.S. Department of Justice (DOJ) challenged the constitutionality of SB4 in a lawsuit filed on Jan. 3, claiming that immigration is the exclusive responsibility of the federal government and that the Texas law is unconstitutional. Federal attorneys are asking the district court to issue an injunction barring enforcement of SB4 by state officials.

“It is clear to any honest and objective person living in this country that President Biden has willfully disregarded the laws of the land, abdicated his constitutional duty to provide for a common defense, and unilaterally surrendered control of our border to terrorist drug cartels,” Mr. Arrington told reporters during a Capitol Hill news conference on Feb. 14.

“Not only has President Biden failed to enforce our laws and secure our border, he has aggressively obstructed Texas’s efforts to do the job of the federal government, including the DOJ lawsuit over SB4. I am proud to lead 45 of my colleagues in an Amicus Brief supporting Texas’s Article 1 Section 10 right to stop the chaos, secure the border, and protect Texans—not only is the Constitution on our side, but the American people are on our side as well,” the Texas Republican said.

The brief’s signers concluded that the federal court “should hold that whether an invasion of Texas has occurred and whether Texas has chosen an appropriate means to engage in war are both non-justiciable political questions, to be decided by Texas. And, because Texas’s determinations are non-justiciable, it is not for this Court to second-guess their validity under the Constitution.”

Regardless of the district court’s ruling, the case is likely to end up in the U.S. Supreme Court.

Signers of the brief included 24 Republican members of the Texas congressional delegation, as well as multiple GOP representatives from 14 other states, including Virginia, North Carolina, South Carolina, Georgia, Louisiana, Oklahoma, Indiana, New York, Oregon, Arizona, Colorado, Florida, California, and Illinois.