Texas Governor Abbott Amplifies Invasion Declaration
FAIR Take | September 2023
In the wake of historic flows of illegal aliens over the southern border, Governor Greg Abbott reissued his declaration of invasion on September 20 and deployed more Texas National Guard, Texas Department of Public Safety, and local law enforcement personnel to the Texas border. Abbott’s latest pronouncement occurred after the Biden administration directed federal agents to cut the razor wire in Eagle Pass, which Texas National Guard troops erected to stop the deluge of illegal border crossers from entering Texas, undermining the governor’s efforts to protect his state.
Abbott originally declared the invasion through an executive order dated July 7, 2022 and authorized state troops to intervene. As legal grounds for this order, the Governor invoked several provisions of the U.S. and Texas constitutions. These provisions included:
- Article IV, Section 4 of the U.S. Constitution, which requires the federal government to protect the states against invasion;
- Article I, Sec. 10 of the U.S. Constitution, which impliedly authorizes the states to engage in military action if actually invaded, “or if in such imminent danger as will not admit of delay”;
- Article 4, Sec. 7 of the Texas Constitution, which authorizes the Governor to call forth the militia to “repel invasion.”
At the end of the order, Governor Abbott declared: “[N]ow therefore, I, Greg Abbott, Governor of Texas, by virtue of the power and authority vested in me by the Constitution and laws of the State of Texas, do hereby authorize and empower the Texas National Guard and the Texas Department of Public Safety to respond to this illegal immigration by apprehending immigrants who cross the border between ports of entry or commit other violations of federal law, and to return those illegal immigrants to the border at a port of entry.”
Subsequently, in a November 2022 letter to President Biden, Governor Abbott squarely blamed the President’s inaction for driving him to this point. Abbott wrote: “Your inaction has led to catastrophic consequences. Under your watch, America is suffering the highest volume of illegal immigration in the history of our country.” Abbott further described how Texas is paying the price for the President’s inaction. He then declared, “[Y]ou and your Administration are in violation of Article IV, § 4 of the U.S. Constitution. Your sustained dereliction of duty compels Texas to invoke the powers reserved in Article I, § 10, Clause 3, which represents an acknowledgment of the States sovereign interest in protecting their borders” (citations omitted).
According to U.S. Customs and Border Protection, in fiscal year 2023 through July, there over nearly 1.2 million encounters in Texas alone. In just the past couple of days, more than 4,000 aliens have crossed into Eagle Pass, Texas, forcing the mayor to declare an emergency. In the past couple of years, Eagle Pass has become one of the most hard-hit border areas, compelling Governor Abbott to install a 1,000-foot string of floating buoys in the Rio Grande to secure the border and deter illegal immigration there.
Not only has the Biden administration done nothing to stop the flow of people and drugs across the southern border, it has actively fought efforts by Governor Abbott to protect Texas as evidenced by the administration’s lawsuit against the governor for placing buoys in the Rio Grande. The administration claimed the buoys violated the Rivers and Harbors Act, but a three-judge 5th Circuit panel permitted them to remain while the case is being adjudicated.
Given the unparalleled onslaught of border crossers into Texas and President Biden’s ill-considered policies that have failed miserably to secure the border, Governor Abbott’s invasion declaration presents a novel legal question for the courts and will no doubt be the subject of future litigation.