So far, the judges and commissioners of 33 counties have declared an invasion at the southern border or expressed support for Abbott doing so. They’ve also called on him to use his full constitutional authority to repel it—by either expelling illegal foreign nationals out of Texas or preventing them from entering at all.
In his letter, Abbott said he invoked the Invasion Clauses of Article 1, Section 10 of the U.S. Constitution and Article IV, Section 7 of the Texas Constitution. In it, he directed the Texas National Guard and DPS troopers “to arrest and return to the border immigrants who crossed illegally and deploy DPS to arrest illegal immigrants for criminal activity.”
But the Texas National Guard was ordered to transport them to ports of entry, not expel them from Texas. And his office regularly reports how Texas law enforcement officers assist Border Patrol agents with now more than 323,000 apprehensions.
This approach isn’t what the judges, or others, believe “repelling an invasion” actually means.
Abbott issued the order two days after Kinney, Goliad and Terrell counties first declared an invasion, a move that didn’t go far enough, many judges, the Republican Party of Texas and others maintain, including Florida Gov. Ron DeSantis.
After being among the first to send aid to assist with Abbott’s Operation Lone Star, DeSantis said it wasn’t the best use of state resources. What was happening, DeSantis argued, was Texas would “let them come across and release them to the Feds and then the Feds just release them anyways.”
Instead, “What Texas needs to do is just send them back across the border,” DeSantis said. “Who cares what the Feds are saying. They aren’t doing their job.
“Texas shouldn’t let them come across the border to begin with. They just walk right across the river. No one is stopping them.”
DeSantis also said he’d send assistance if he thought Texas’ strategy “was really making a difference. But to just stop somebody, hand off to Border Patrol and then the Border Patrol releases them, I’d much rather have our folks here to protect Floridians.”
“When the founders wrote the invasion clause, they didn’t have in mind that repelling an invasion meant busing foreign nationals to Philadelphia or Washington, D.C.,” national security law expert and Navy JAG officer Jonathan Hullihan told The Center Square. “The 1775 definition of ‘repel’ is ‘to drive back an anything,’ ‘to drive back an assailant,’” Hullihan said, citing Samuel Johnson’s 1775 Dictionary.
DeSantis, who served as a task force Navy JAG with Navy SEALs in Iraq, performed similar duties to Hullihan, who held the same position in Afghanistan.
“Everyone understands repel means to stop and turn away, not process and transport illegal aliens into the United States,” Hullihan said.
“Texas’ so-called ‘busing strategy’ is helpful to raise awareness about the border crisis, failed sanctuary city policies, and the enormous costs imposed on taxpayers. But it’s not a winning strategy to secure the national security of the United States. We don’t know the true identities of those being bused all over the country.”
Center for Renewing America argues Abbott’s approach “has not invoked the full authority of an invasion declaration. Saying you’re being invaded but not blocking the invaders from coming is a hollow shell. Until Governor Abbott removes illegals back across the border and out of the country, this will continue to be a P.R. stunt—and Texas and the U.S. are worse off because of it.”
Kinney County Attorney Brent Smith told The Center Square that Abbott’s order would “simply result in illegal aliens being detained in Texas and released in Texas,” which is what has happened, he argues. “Without declaring an invasion and fully repelling it,” he said, “the lawlessness and violence occurring on our border” will only get worse.
Abbott also notes Texas’ border security efforts and the more than $4 billion the Texas legislature has allocated to fund them.
He also encourages the judges to send an “urgent message to our congressional delegation, which has the power to act under Article I, § 8 of the U.S. Constitution;” adding, “Federal officials who will not faithfully execute the immigration laws should face hearings and even impeachment.”
However, this may prove futile if Republicans don’t hold a majority in Congress, and many in the Texas delegation have repeatedly called on the Biden administration to secure the border. Chief among them are Rep. Chip Roy (R-Texas) and Sen. Ted Cruz (R-Texas) who’ve argued for Department of Homeland Security Secretary Alejandro Mayorkas to be impeached.
Abbott also argues Congress should amend federal statute 18 U.S.C. Section 242 “to ensure that our Troopers and Guardsmen are not exposed to federal criminal prosecution for protecting Texas against illegal entry between ports of entry.”
Texas Attorney General Ken Paxton’s office has held a similar position, which Hullihan argues is a misunderstanding of the federal preemption doctrine.
Abbott also asserts, “Texas has forcefully responded to Biden’s open border policies by doing more than any state in the history of America to do the federal government’s job to secure the border” and has “done more than its fair share for far too long.”
He adds, “The time has come for the federal government to do its job.”
However, Abbott’s also acknowledged that “Biden officials have no clue about what’s going on at the border.” And the administration continues to defend its policies in court in response to lawsuits filed by Texas and other states. Vice President Kamala Harris, Mayorkas and others maintain the southern border is secure.
