Texas Department of Public Safety officers guide a tour of portions of the Rio Grande by U.S. senators on March 26, 2021. (The Texan/Hayden Sparks)
The Center Square indicated that the following counties are included on the list: Atascosa, Burnet, Chambers, Clay, Collin, Ector, Edwards, Ellis, Fannin, Goliad, Hamilton, Hardin, Hood, Hunt, Jack, Jasper, Johnson, Kinney, Lavaca, Leon, Liberty, Live Oak, Madison, McMullen, Montague, Navarro, Orange, Parker, Presidio, Shackelford, Somervell, Terrell, Throckmorton, Tyler, Van Zandt, Waller, Wharton, Wichita, Wilson, and Wise.
Many of the resolutions were written to back Abbott’s Operation Lone Star, secure grant funding from the State of Texas, and pressure the federal government to take more aggressive steps to deter illegal immigration. Part of the funding, which was included in an appropriations bill passed in September 2021, is to help counties pay for additional law enforcement to respond to the increased criminal activity that accompanies illegal immigration.
Those who support border security measures focused on deterrence often say “every county is a border county.” Counties have cited fatal drug overdoses and concerns about human trafficking as part of the basis for passing these documents, even if many of the jurisdictions in question are hundreds of miles away from the border.
Gov. Greg Abbott embraced the characterization of illegal immigration as an “invasion,” but his approach to the strategy has been complicated.
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In November, Abbott tweeted that he had invoked the “invasion” clauses of the federal and state constitutions and outlined border security measures that he had taken. Many news outlets reported the development as breaking news, but Abbott had instituted most of the measures he listed months earlier.
The U.S. Constitution requires the federal government to protect states against invasions. In addition, Article I, Section 10 of the Constitution authorizes states to protect themselves against the same.
“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,” the provision reads.
Article IV, Section 7 of the Texas Constitution addresses how the governor is to respond if the state is invaded.
“He shall be Commander-in-Chief of the military forces of the State, except when they are called into actual service of the United States.  He shall have power to call forth the militia to execute the laws of the State, to suppress insurrections, and to repel invasions,” the section reads.
Abbott has addressed the idea that the state should deport illegal immigrants on its own instead of waiting for the federal government to do it — a course of action that some counties have urged. The governor has made at least two arguments against the strategy.
First, the U.S. Department of Justice could prosecute a law enforcement officer or National Guardsman who tries to deport a foreign national without federal authorization. The U.S. Constitution is clear that federal law trumps state law in Article VI, Paragraph 2, known as the Supremacy Clause.
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding,” the Constitution reads.
Federal law protects people from abuse by law enforcement officers. For instance, the crime of deprivation of rights under color of law covers the “rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.”
According to the DOJ, the criminal statute includes “acts done beyond the bounds of that official’s lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties.”
Consequently, it is conceivable that a deputy sheriff, state trooper, or some other person who forced someone into Mexico or elsewhere could be prosecuted.
Second, many of the noncitizens in the U.S. have federal paperwork that allows them to stay in the country temporarily. Even if the State of Texas removed someone, Abbott contended they could simply reenter the country using the documentation provided by DHS, creating a “revolving door.”
Sen. John Cornyn also resisted the wartime analogy, saying it evokes “connotations” that do not fit illegal immigration.
Attorney General Ken Paxton, though he has called illegal immigration an “invasion,” said the Biden administration could take over the state’s National Guard if Abbott tried to usurp federal authority. Paxton has filed numerous lawsuits against the administration over its border security policies. His most recent success was the U.S. Supreme Court’s stay of the decision to terminate Title 42 expulsions, which count for a large share of the enforcement encounters by border guards.
Even from a conservative perspective, one columnist contended in a piece for National Review that Abbott’s actions contravene an “originalist” interpretation of what the Constitution considers an invasion.
Some even claim the “invasion” language is racially charged and represents hostility toward minority groups in the U.S.
However, there are those who say that the border crisis has worsened to the point that Texas has been left with no choice.
One of the most prominent advocates of invoking the Constitution’s “invasion” provisions is Ken Cuccinelli, a former attorney general of Virginia and a senior fellow with the Center for Renewing America. Cuccinelli served in the Trump administration as an acting deputy secretary of the Department of Homeland Security.
“Here we have a federal administration that has intentionally tied the hands of [U.S. Customs and Border Protection] and [Immigration and Customs Enforcement] and made as hard as possible for them to accomplish the mission of border security, while virtually inviting people in illegally,” Cuccinelli said on a podcast this summer.
“These circumstances make it even more starkly clear why the founders would have left the states with this authority so they can protect themselves.”
In an interview with The Texan earlier this month, former CBP Acting Commissioner Mark Morgan praised Abbott for his border security measures but urged the governor to take the “final step” of using state resources to return illegal immigrants across the border.
“When the governor declared an invasion under the Constitution, under the self-help remedy, it was very encouraging … because he’s literally declaring war against the cartels,” Morgan said. “That gives him the authority and the tools to do basically whatever he needs to do to protect his state — and that includes removing illegal aliens.”
He also highlighted the security risks of illegal immigration.
“The fact is right now that the next terrorist sleeper cell could already be in the United States planning the next terrorist attack, and we would have no idea because they were part of the 1.3 million got-aways from 160 different countries,” Morgan said.
According to an NPR/Ipsos survey conducted in July, a majority of Americans agreed with the characterization that there is an invasion on the southern border. However, the report also chided the public — particularly Republicans — for failing to answer correctly on a series of factual questions about illegal immigration.
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A free bi-weekly commentary on current events by Konni Burton.
Hayden Sparks is a senior reporter for The Texan and a lifelong resident of the Lone Star State. He has coached competitive speech and debate and has been involved in politics since a young age. One of Hayden’s favorite quotes is by Sam Houston: “Texas has yet to learn submission to any oppression, come from what source it may.”
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