A handful of Texas counties on Tuesday declared the ongoing border crisis an “invasion” and called on Texas Gov. Greg Abbott to do the same, citing constitutional authority for states to act in self-defense in the face of federal inaction.
Speaking in rural Kinney County, which includes a stretch of the U.S.-Mexico border, officials from Kinney, Uvalde, and Goliad counties said the Biden administration has refused to secure the border and enforce the law, and that although Abbott has done much to support local communities in south Texas most affected by the crisis, he needs to do more. Namely, he needs to follow their lead and declare an invasion.
County officials of course can’t do anything about illegal immigration on their own, but their argument is that Abbott, as governor of Texas, can. They cite Article I, Section 10, Clause 3 of the Constitution, which says that states can’t do things like conduct foreign policy or engage in war, “unless actually invaded, or in such imminent Danger as will not admit delay.”
Those three words, “unless actually invaded,” are the crux of the argument. The idea that states have the constitutional power to act on their own to enforce immigration law and police the border has been gaining ground for some time now. Former Trump administration officials such as Russ Vought and Ken Cuccinelli, both now at the Center for Renewing America, have made a case for unilateral state action on the border.
Cuccinelli, former acting deputy Homeland Security secretary under Trump, was at the press conference on Tuesday in Texas. “This is the first time in American history that a legal authority has found, as a matter of law, that the United States is being invaded,” he said, later adding, “What we’re talking about is an operation that looks a lot like Title 42.”
That is, declaring an “invasion” means that state law enforcement, at the direction of the Texas governor, would directly arrest and expel to Mexico illegal immigrants in much the same manner as Border Patrol and U.S. Customs and Border Protection does now under Title 42, the pandemic health order that allows federal authorities to expel illegal immigrants with minimal processing.
So far, Abbott has been reluctant to take this route, instead attempting lesser measures such as arresting and prosecuting illegal border-crossers for criminal trespass or ordering onerous state inspections at ports of entry as a way to pressure his Mexican counterparts into stopping migrants in Mexico before they cross the border.
These lesser measures, however, haven’t done anything to stem the flow of illegal immigration, which continues, month over month, to set new records. Perhaps it’s time for Abbott to listen to these local officials, and also to people like Rep. Chip Roy, R-Texas, who was also at the press conference Tuesday and said, “We should declare an invasion and, as Texas, turn people away.”
Arguably, Abbott already bought into this more expansive constitutional interpretation of state authority when he struck security agreements with the governors of the four Mexican states bordering Texas back in April. (Never mind that the agreements were mostly for show, given the corruption of Mexican officialdom in these states.) After all, Article I, Section 10, Clause 3 of the Constitution says that states are not allowed to “enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded.”
By entering into security agreements with “another State, or a foreign Power,” it would seem Abbott has tacitly acknowledged not only that his state has been “actually invaded,” but that he has the constitutional authority to act in its defense. If that’s the case, why not take the next step and avail himself of the considerable law enforcement (and military) resources at his disposal to secure the border and expel illegal immigrants?
Maybe Abbott, secure in the state capital of Austin, is just taking longer to reach this conclusion than the people of south Texas, who are bearing the brunt of the border crisis. Indeed, among the hundreds of thousands of people crossing the border illegally every month now are a not insignificant number of people who do not want to be arrested, and whose presence on U.S. territory could reasonably be considered hostile. Unlike the migrant families who turn themselves in to the first Border Patrol agent they see, these people often attempt to evade the authorities, which gives rise to things like high-speed chases through small towns and over private lands. Across Texas border communities, this has become a serious and worsening problem since President Biden took office.
Some of those chases end in damaged property; some end in fatal car crashes. Sometimes the attempt to evade detection ends not with a chase but a horrifying tragedy like the one in San Antonio last month, where 53 migrants were found dead in a tractor-trailer.
Corporate media outlets, to the extent they cover the border crisis at all, will likely only mention efforts to declare the crisis an invasion in order to mock it or smear the people arguing for it as racists and bigots. But it is not some crackpot idea. In February, Arizona Attorney General Mark Brnovich issued a legal opinion affirming that the border crisis constitutes an invasion and that the governor of Arizona, Doug Ducey, has the authority under the Constitution to secure its border with Mexico.
In his legal opinion, Brnovich argued that the meaning of the word “invade,” as used in Article I of the Constitution, “covers the activities of the transnational cartels and gangs at the border—they enter Arizona ‘in [a] hostile manner’; they ‘enter as an enemy, with a view to … plunder’; they ‘attack,’ ‘assail,’ and ‘assault’; and they ‘infringe,’ ‘encroach on,’ and ‘violate’ Arizona.”
Ducey, like Abbott, has thus far balked at the idea of using state law enforcement to police the border directly. But as the crisis drags on, each month breaking the previous month’s record for arrests, border-state governors might be forced to test the limits of their authority. The incentives to do so are only going to mount as the crisis worsens.
And anyway, if there’s a constitutional question to be settled here, why not step forward now, set down a marker, enforce the law, and see how it plays out? If states really have no power to repel an invasion, no ability to defend their people and police their borders in the face of federal inaction, then we might as well admit now that we no longer live in a constitutional republic, and that states, whatever they once were, have been reduced to nothing more than administrative units of a centralized regime in Washington. There’s a word for such a political arrangement: empire.
John Daniel Davidson is a senior editor at The Federalist. His writing has appeared in the Wall Street Journal, the Claremont Review of Books, The New York Post, and elsewhere. Follow him on Twitter, @johnddavidson.