TEXAS, USA — Gov. Greg Abbott on Thursday cleared state authorities to return migrants they apprehend to the border, setting up a potential clash with the federal government.
Immigration law enforcement is a federal responsibility. Abbott appears to be testing the limits of state authority by empowering state law enforcement to bring migrants to the ports of entry — stopping short of using state resources to expel migrants from the country.
In recent months, Abbott has faced growing pressure from within his party to assert a stronger state role and invoke “invasion” powers under the U.S. Constitution. Such a declaration, some Texas Republicans contend, would give states solid legal ground to invoke war powers to send the state’s National Guard to its border to deport migrants. The idea has been widely derided by legal experts as a political ploy, and Abbott earlier this year expressed concern that it could expose state law enforcement to federal prosecution.
The executive order that Abbott issued Thursday allows the Texas National Guard and Texas Department of Public Safety to apprehend “immigrants who cross the border between ports of entry or commit other violations of federal law, and to return” them to ports of entry. It is unclear from the executive order what state authorities would do with the migrants once they returned them to the ports of entry.
“While President Biden refuses to do his job and enforce the immigration laws enacted by Congress, the State of Texas is once again stepping up and taking unprecedented action to protect Americans and secure our southern border,” Abbott said in a statement.
Abbott's executive order does not explicitly declare an "invasion" but makes reference to the relevant part of the U.S. Constitution. The executive order says Biden’s “failure to faithfully execute the immigration laws enacted by Congress confirms” he has abandoned his constitutional duty to protect the state against an “invasion.”
On Tuesday, a group of county leaders in South Texas called on Abbott to declare an “invasion” and begin putting state resources toward expelling migrants. The same day, Lt. Gov. Dan Patrick echoed such calls.
“If we’re being invaded under the Constitution, I think that gives us the power to put hands on people and send them back,” Patrick said on Fox News.
Abbott's executive order was not enough to satisfy one of the loudest advocates for him to declare an "invasion," the Center for Renewing America. Two officials with the think tank, Russ Vought and Ken Cuccinelli, issued a statement noting that Abbott "does not appear to formally declare an invasion not direct [state law enforcement] to remove illegals across the border directly to Mexico."
"That is critical," they said. "Otherwise this is still catch and release."
The call to invoke the U.S. and Texas constitutions to declare an invasion as a means to crack down on immigration is based on a fringe legal theory that gained mainstream attention earlier this year when Arizona Attorney General Mark Brnovich said that state’s governor, Doug Ducey, would be on solid legal ground to invoke war powers to send the state’s National Guard to its border to stop an “invasion” of drug cartels and criminal gangs. Brnovich is running for U.S. Senate as a Republican. Ducey, also a Republican, has resisted calls to declare an invasion.
Immigration experts are scrambling to understand the effect of Tuesday's executive order.
"Would troops and DPS simply be driving migrants to a port of entry and dropping them off to be processed there?" Aaron Reichlin-Melnik, policy director at the American Immigration Council asked on Twitter.
Abbott's executive order comes just a week after Kinney County Sheriff Brad Coe announced his office was taking matters into their own hands by transporting migrants to the border. He said his office took four migrants into custody after they had been involved in a car wreck. He tried to turn them over to immigration officials, but they would not take them because they said the migrants needed to be medically cleared.
Coe said he did not have enough deputies to wait with the migrants for hours at the hospital so he made a “command decision” to offer them a ride back to the U.S. port of entry in Eagle Pass.
On Thursday, Brent Smith, a Kinney County attorney, said Abbott's actions fell short.
"Without declaring an invasion and invoking the self defense clause under Article 1, the lawlessness and violence occurring on our border with Mexico will continue to be allowed by DHS and their unconstitutional immigration policies," Smith said in a statement.
Immigration rights groups have repeatedly condemned referring to migrants as an “invasion,” noting the rhetoric is dangerous to Latino communities and was cited by the El Paso shooter who killed 23 people in 2019. Law enforcement said the gunman left a message saying the attack was “in response to the Hispanic invasion of Texas.”
A White House spokesperson sent the following statement:
"Governor Abbott’s record on immigration doesn’t give us confidence in what he has cooked up now. His so-called Operation Lone Star put national guardsmen and law enforcement in dangerous situations and resulted in a logistical nightmare needing Federal rescue, and his secondary inspections of trucks crossing into Texas cost a billion dollars a week in trade at one bridge alone without turning up a single case of human or drug trafficking. President Biden is focused on real policy solutions to actually secure our border – installing new border technology, securing record levels of funding for the Department of Homeland Security, making over 2,800 arrests in the first three months of launching an unprecedented anti-smuggling campaign, and bringing 20 world leaders together for the first time to take collective responsibility to manage increased migration flows across the Western Hemisphere."
The story was originally published in The Texas Tribune.