Why Texas cannot declare an ‘invasion’ at the border

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Texas Republican Gov. Greg Abbott may be on the verge of escalating his campaign against what he sees as unchecked illegal migration at our southern border. According to New York Times reporting, the governor is considering declaring an “invasion” along the border, so that state police could arrest and deport migrants. Abbott has been vocal about what he calls Biden’s “open border” policies, as the level of border apprehensions have recently risen to levels rivaling record highs.

But this is a Texas-sized bad idea. There are legal and practical reasons why states cannot take immigration matters into their own hands. It is well-settled law that immigration enforcement is the jurisdiction of the federal government. There is no getting around this, so any plan like Abbott’s will only result in wasteful lawsuits. Plus, using words like “invasion” when discussing migration is divisive and puts Latinos and immigrants at risk.

Former Trump administration officials say Abbott could declare an invasion by invoking two clauses in the Constitution. One clause says that the U.S. government shall protect states from invasion, while another says states cannot engage in war except when “actually invaded.”

If this legal rationale seems convoluted, that’s because it is.  

As recently as 2012, in the case arising from Arizona’s “papers, please” law, the Supreme Court affirmed that states cannot set immigration policy. “Arizona may have understandable frustrations with the problems caused by illegal immigration … but the state may not pursue policies that undermined federal law,” wrote Justice Anthony Kennedy in the majority opinion. Other immigration lawsuits by states relying on the “invasion clause” have likewise failed in lower courts. Were Abbott to declare an invasion, his plan would be struck down by the courts as well. 

In the meantime, such a proposal could expose state law enforcement officials to criminal liability. “There are federal laws that law enforcement can be prosecuted under if they were to take someone without authority and immediately return them across the border,” Abbott himself said in an April news conference. He’s right. Besides, any state action on immigration would likely run counter to the Constitution’s Supremacy Clause, which establishes that federal law takes precedence over state law.  

Legal arguments aside, there is simply not an invasion happening at the border. An invasion is what is happening in Ukraine — which is far different from the situation in Texas and other border states.  

Along our border, there has been a significant influx of migrants; the number increased 33 percent between February and March, to about 221,000, according to U.S. Customs and Border Protection. Yet many of these migrants are exercising their right to claim asylum and other forms of humanitarian relief. They are certainly not waging war on the U.S.

How ironic that a governor would consider fighting legal immigration with a patently unlawful measure. 

Then again, Abbott is no stranger to using immigration as political theater. In March 2021, he sent National Guard troops to the border, in a mission plagued by poor planning and low morale. In April 2022, he ordered secondary inspections on trucks coming from Mexico, leading to huge backups at ports of entry and damage to the supply chain. That same month, Abbott sent willing undocumented immigrants to Washington, D.C., on taxpayer-funded bus trips. Any “invasion” declaration from Abbott would just be another costly publicity stunt designed to get himself on Fox News and help his re-election chances.  

True, the Biden administration faces a huge challenge due to the sharp increase in migrant arrivals at the border. These numbers may well grow, depending on whether Title 42 — a public health law that has been used to control the border during the pandemic — is ultimately kept in place or lifted. That still doesn’t mean Abbott or other state lawmakers can unilaterally devise their own immigration policies.

Consider how chaotic it would be if states did craft their own immigration measures; we would end up with a patchwork of immigration laws. And words like “invasion” should not be used lightly in the context of immigration. Such words are reminiscent of the language used in the manifesto of the El Paso shooter, who was responsible for the largest mass killing of Latinos in modern U.S. history.  

Not only is there no “invasion” in Texas, no governor has the right to make state policy on federal matters. Gov. Abbott must respect the law — and remember that immigration posturing is not leadership.

Raul Reyes is an immigration attorney and member of the USA Today Board of Contributors. A graduate of Harvard University and Columbia Law School, he is also a contributor to NBCNews.com and CNN Opinion. You can follow him on Twitter at @RaulAReyes, Instagram: raulareyes1.

Tags Anthony Kennedy asylum seekers Border enforcement Greg Abbott Illegal immigration immigration enforcement immigration policy invasion Texas politics U.S.-Mexico border crisis

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