Confusion Abounds Over Texas Governor’s Border ‘Invasion’ Declaration

What is the significance of Gov. Greg Abbott tweeting about a border “invasion” this week? For legal and logistical purposes, not much. But stay tuned.

“I invoked the Invasion Clauses of the U.S. & Texas Constitutions to fully authorize Texas to take unprecedented measures to defend our state against an invasion. I’m using that constitutional authority, & other authorization & Executive Orders to keep our state & country safe,” Abbott tweeted.

Yet there’s less to that statement than meets the eye, security experts say.

Mark Morgan, former acting chief of U.S. Customs and Border Protection (CBP) and a senior fellow at FAIR, said that for any declaration “to mean anything, the governor must provide the Texas Department of Public Safety and the National Guard the authority to remove aliens directly back to Mexico without involving Border Patrol, CBP or the federal government.” No such authorization has been issued by the governor.

While Texas is doing more than any other state to apprehend illegal aliens, the Biden administration continues to make matters worse with its almost non-existent border enforcement policies.

Back in July, Abbott issued an executive order citing Texas’ constitutional authority to defend its sovereignty. He cited the U.S. Constitution (Article 1, Section 10, Clause 3) and the Texas Constitution (Article 4, Section 7) as a basis for his authority.

Abbott followed a legal opinion issued by Arizona Attorney General Mark Brnovich, who stated that governors, as commanders-in-chief, have independent authority under the State Self-Defense Clause of the Constitution to defend their states from an actual invasion.

Brnovich focused on the aggressive actions of transnational cartels, stating: “This interpretation is supported by James Madison’s specific example of a state militia acting to suppress smugglers. The principal activity of transnational cartels and gangs at the border is to smuggle people and drugs for profit. Indeed, using the state militia to suppress smugglers was Madison’s paradigmatic example of a justified and constitutional use of the state militia.”

But Abbott’s July order stopped short of formally declaring an invasion and repelling it under constitutional authority to “engage in war when actually invaded, or in such imminent danger as will not admit of delay.”

Thirty-three Texas counties have passed resolutions calling on Abbott to formally declare an invasion, stating that transnational cartels trafficking a record number of people and drugs into Texas pose an imminent threat to the lives of Texans.

Jonathan Hullihan, a former lawyer with the Navy Judge Advocate General’s (JAG) office and national security law expert, says, “What’s at issue isn’t Texas enforcing federal immigration law. It’s a matter of the state protecting its sovereignty and the safety of its citizens in the absence of federal enforcement of immigration law.”

But, thus far, Abbott has not attempted to back up his words with state force and remove illegal border crossers when the federal government refuses to carry out its duties.

In a letter to President Biden on Wednesday, Abbott went back to urging Washington to carry out its constitutional obligations to protect the country. In other words, the Texas governor isn’t willing, yet, to test the limits of state authority.