Can Gov. Greg Abbott declare an invasion at the U.S.-Mexico border?


Gov. Greg Abbott is floating the idea of declaring an invasion at the U.S. Mexico border to address an influx of migrants expected as a result of President Joe Biden ending Title 42 expulsions. However, such a strategy would likely not hold up in a court of law, according to Geoffrey Hoffman, director of the University of Houston’s immigration clinic.

When asked during a Thursday roundtable with law enforcement in San Antonio whether he’s considering implementing the strategy, Abbott told reporters it’s something that he is entertaining. “This is something that I began studying when I was the attorney general of Texas,” Abbott said. “It’s something that I’ve continued to study, and there are some issues we’re looking at that we’ve been provided no answer on. The operation, as it would work, is to [detain] these people and deport them immediately.”

Abbott said that his general counsel received a memorandum from the former head of Border Patrol explaining that if he uses the strategy, “it could expose law enforcement in the state of Texas to being prosecuted.” 

The governor added, “So, is it something we’re looking into? Yes. You know me well enough that you know I will look at every legal issue about a policy before we undertake action on that issue.” 

The Republican governor is under pressure from far-right members of his party to declare an invasion. Earlier this month, Rep. Matt Krause (R-Fort Worth) asked Attorney General Ken Paxton for a legal opinion on “whether the federal government has failed to uphold its obligation to protect Texas from invasion under article IV section 4 of the United States Consitution, and whether Texas has the sovereign power to defend itself from invasion.” 

Ken Cuccinelli, a senior fellow with the organization and former deputy secretary of Homeland Security under President Donald Trump, has argued that states can adopt the authority to respond to the situation at the border with force by invoking Article 1, Section 10, Clause 3 of the U.S. Constitution. 

However, Hoffman says the clause in the Constitution relates to the United States protecting individual states against invasion. “It does not operate as a pretext for the states to serve the federal function of immigration enforcement,” Hoffman says. “That’s the bottom line.” 

Some states, like California, have gone to court to try to assert their alleged claim of defining what is and is not an invasion, Hoffman says. “So there is precedent for this… and the courts have rejected these claims because they impact on what they call non-judicial policy decisions that implicate foreign policy and defense,” he says. 

Previous challenges to federal enforcement of immigration law have not fared well in court. California v. United States (1997) and Padavan v. United States (1996), courts ruled that the plaintiff’s invasion clause is “nonjusticiable” and that “the protection of the states from ‘invasion’ involves matters of foreign policy and defense, which are issues that the courts have been reluctant to consider.”

“So it obviously means the courts are not going to wade into the fray,” Hoffman explains. “They’re not going to decide the issue if it becomes an issue because it’s beyond the authority of the courts to determine.” 

Hoffman calls the strategy a “politically motivated maneuver” to try and justify Abbott’s controversial Operation Lone Star and appease far-right conservatives for political gain. “If you’re the governor, or if you’re the state of Texas, you want to try to provide justification for an unconstitutional action,” Hoffman said. “That’s what’s going on here. What they’re doing is trying to find any justification for something that is usurping the authority.”

Declaring an invasion would also be in violation of the Constitution’s Supremacy Clause, Hoffman says. “What they’re trying to do is when they arrest people for ‘trespass’ they’re trying to enforce the immigration laws and that is unconstitutional,” he says. “This is not lawful. It’s political theater. It’s a pretext and will not be held up in court.” 


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