Texas Gov. Greg Abbott made some waves when he announced he was invoking the Invasion Clauses of the U.S. and Texas Constitutions to take action on the ongoing migrant crisis. But some have misunderstood what this announcement means.
Some have taken this as an official declaration that the influx of illegal aliens is an invasion, which would grant Texas the authority to employ more measures to deal with the problem. But the truth is something different.
Gov. Abbott sent a letter to Texas judges who have already labeled the migrant crisis an invasion or called on the governor to do so. In the document, he affirmed his commitment to securing the border and noted that the Biden administration is refusing to do its job.
“So far, the judges and commissioners of 33 counties have declared an invasion at the southern border or expressed support for Abbott doing so. They’ve also called on him to use his full constitutional authority to repel it – by either expelling illegal foreign nationals out of Texas or preventing them from entering at all,” according to The Center Square.
Abbott’s letter read:
As you know, President Biden has abandoned his responsibility to enforce immigration laws, and Congress has refused to hold the President accountable and has abandoned its own responsibility to use the immigration power given to it in Article I, § 8 of the U.S. Constitution.”
Just two years ago, we had the fewest illegal crossings in decades. This past year under President Biden, an all-time record was set for the number of immigrants crossing the border illegally.
The governor is directing the Texas National Guard and Department of Public Safety (DPS) to “arrest and return to the border immigrants who crossed illegally and deploy DPS to arrest illegal immigrants for criminal activist.”
However, as I discussed in a previous article, this does not mean Gov. Abbott will be instructing the authorities to deport illegal aliens apprehended while trying to sneak into the country. Instead, the Texas National Guard will take these individuals to ports of entry and hand them over to federal border enforcement. In essence, it appears he plans to expand the activities of Texas law enforcement beyond what they have been doing under Operation Lone Star.
Nevertheless, some reports suggest that Abbott declared an invasion, which has caused some confusion. National security law expert and Navy JAG officer Jonathan Hullihan told The Center Square that “[w]hen the founders wrote the invasion clause, they didn’t have in mind that repelling an invasion meant busing foreign nationals to Philadelphia or Washington, D.C.”
“The 1775 definition of ‘repel’ is ‘to drive back an anything,’ ‘to drive back an assailant,’” Hullihan said.
He continued:
“Texas’ so-called ‘busing strategy’ is helpful to raise awareness about the border crisis, failed sanctuary city policies, and the enormous costs imposed on taxpayers. But it’s not a winning strategy to secure the national security of the United States. We don’t know the true identities of those being bused all over the country.”
The Center for Renewing America criticized Abbott’s approach, saying he “has not invoked the full authority of an invasion declaration. Saying you’re being invaded but not blocking the invaders from coming is a hollow shell. Until Governor Abbott removes illegals back across the border and out of the country, this will continue to be a P.R. stunt – and Texas and the U.S. are worse off because of it.”
Hullihan also noted that if the governor were invoking his constitutional authority, “he would have done so in an official document, not from a personal Twitter account.”
“If he’s using the same authority he already invoked, why didn’t he repel the invasion in July?” he asked.
During an appearance on Fox News, former Trump administration official Ken Cuccinelli insisted invoking the invasion clauses won’t make a difference if Texas is not deporting illegals.
“If the goal is actually to reduce the harm to Texas, then he needs to start using the invasion authority to return people to Mexico,” he said. “He hasn’t done anything but talk about the invasion authority.”
“This is just catch-and-release with state officials,” Cuccinelli added. “Everybody knows an invasion exists, but to actually repel it … means putting people crossing the border back into Mexico.”
However, it is not clear Abbott can take such an action without dealing with consequences. In April, he said during a press conference that if he were to issue such a declaration, the courts would simply strike it down. There is precedent for this. In a similar situation, the Supreme Court ruled against Arizona back in 2012. Moreover, federal law indicates that state officials who participate in deporting illegals could be subject to prosecution. I don’t think anyone is under the illusion that the Biden administration would hesitate for a second to arrest and convict Texas law enforcement agents for protecting their state from the influx if migrants.
Nevertheless, there might be other ways Texas and other states could resist such a legal challenge. If other states are willing to declare invasions, they might be able to mount a successful lawsuit against the White House since it is clear they are not willing to address the ever-worsening situation at the southern border.
