In the recent midterms, Governor Greg Abbott was re-elected in the beleaguered border state of Texas, defeating challenger Beto O’Rourke, 54.8% to 43.8%.
On November 15, a week after his re-election, Gov. Abbott tweeted, “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.”
Abbott used the past tense because the actual declaration was made four months previous, on July 7, in Executive Order GA 41:
“NOW, 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.”
Abbott's aforementioned tweet includes a list of actions his administration is taking on the border: deploying the National Guard and Texas Department of Public Safety (TxDPS), repelling illegal aliens or returning them to the border, building a border wall, deploying gun boats on the Rio Grande, designating Mexican drug cartels as terrorist organizations, signing compacts with other states and foreign powers (Mexican border states), and allocating resources for counties on the border.
The governor of Texas has a number of security agencies under his authority, including the famed Texas Rangers, the Highway Patrol, the Texas State Guard, the Texas Air National Guard, and the Texas Army National Guard. (Full disclosure: I served in the Texas Army National Guard for a number of years.)
Further assistance can be obtained from municipal and county governments on the border.
On November 16, Abbott sent a letter to Joe Biden himself, also sending carbon copies to U.S. Attorney General Merrick Garland and Secretary of Homeland Security Alejandro Mayorkas.
It begins thusly:
“The U.S. Constitution won ratification by promising the States, in Article IV, § 4, that the federal government ‘shall protect each of them against Invasion.’ By refusing to enforce the immigration laws enacted by Congress, including 8 U.S.C. § 1325(a)(1)’s criminal prohibition against aliens entering the United States between authorized ports of entry, your Administration has made clear that it will not honor that guarantee. The federal government’s failure has forced me to invoke Article I, § 10, Clause 3 of the U.S. Constitution, thereby enabling the State of Texas to protect its own territory against invasion by the Mexican drug cartels.”
Article I, § 10, Clause 3 stipulates: “No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”
Therefore, since Texas is being invaded, this clause can take effect.
“Your inaction has led to catastrophic consequences,” writes Abbott to Biden. “Texans are paying the price for your failure.”
Abbott returns to the constitutional justification:
“By opening our border to this record-breaking level of illegal immigration, you 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…”
“Using that authority, Texas will escalate our efforts to repel and turn back any immigrant who seeks to enter our State at a border crossing that Congress has designated as illegal; to return to the border those who do cross illegally; and to arrest criminals who violate Texas law.”
Abbott tells Biden, “All of this can be avoided, of course, if you will simply enforce the laws that are already on the books,” and then spells out what the administration could do to secure the border.
Gov. Abbott has made a powerful case here.
How will the Biden administration respond?
You can find more of Allan Wall's work at his website.