Again, this will not change the outcome. These sorts of hypothetical "how many lawyers can one stand on the head of a pin?" questions have no place in a decision to review whether a clear federal statute (Rivers and Harbors Act) is being violated, and to review the well-settled Supremacy Clause litigation, that the US Constitution resides above the claim of a Texas right to make war.
There is simply no rational basis to conclude (even if one believes Texas properly invoked its own "state level" war powers laws) that NO COURT is allowed review, or to compare those to the FEDERAL Constitution (which Texas long ago ratified -- and has accepted all the benefits from), in the web of federal border control laws -- to decide which is. . . supreme. None.
But overnight, the goofy ruby red en banc Fifth Circuit voted to ask for more briefing on six questions (including some hypothetical ones!) surrounding Texas's power to "make war" -- and whether migrant crossings are an "act of war". Cripes. This is stupid, but here it is -- in three pages, of silly sophistry:
. . .Did the district court err in holding that whether Texas has been invaded is a non-justiciable political question? If not, did the district court err in proceeding to issue a preliminary injunction despite the presence of that question?
In a hypothetical case, if an action is brought against the President, rather than a governor, for exercising the constitutional war power, do we apply the same justiciability analysis?. . . .
What this is. . . is simply an attempt to delay the inevitable: Texas loses -- even in a ruby red Cincy appeals court.
नमस्ते
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