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Govs. Urged to Invoke Constitution’s ‘Invasion’ Clause to Defend Border

'Until you are actually returning people to Mexico, what you are doing will have no effect...'

(Headline USA) Former Trump administration officials are pressing Texas Gov. Greg Abbott to declare an invasion along the U.S.–Mexico border, thereby giving thousands of state troopers and National Guard members sweeping new authority to turn back migrants.

Tom Homan, the former acting director for Immigration and Customs Enforcement under Trump, said at the Border Security Expo in San Antonio last week that he had consulted with the governor’s legal counsel about invoking Article 1, Section 10, Clause 3 of the US Constitution.

“We’ve had discussions with his attorneys in his office, ‘Is there a way to use this clause within the Constitution where it talks about invasion?’” Homan said.

Homan on Tuesday described the response from Abbott’s office, which he said took place about three months ago, as “non-committal but willing to listen.”

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The maneuver essentially would bestow enforcement powers that have been a federal responsibility but have been blatantly ignored by the current Biden administration as it pushes an open-borders agenda in violation of both federal statute and constitutional duty.

Tthe Republican governor was preparing on Wednesday to announce “unprecedented actions” to deter migrants after the Biden administration announced last week it would end the use of a public-health law that has limited asylum to prevent the spread of COVID-19.

It is unclear whether Abbott—who is already installing more border barriers and allowing troopers to arrest migrants on trespassing charges—supports the invasion declaration, although he has used similar language previously in relaying his concerns over the crisis.

“The border crisis is so dire that the U.S. Customs and Border Protection is requesting our help as their agents are overwhelmed by the chaos,” Abbott said in a statement last September. “Unlike President Biden, the State of Texas remains committed to securing our border and protecting Americans.”

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One of Abbott’s former primary challengers, Lt. Col. Allen West, noted at the time that the move was both Texas’s right and its duty.

“[T]he Constitution clearly states that if a state is facing threat of invasion, which Texas is, the state can act without delay,” West said. “The federal government has abdicated the constitutional duty and responsibility.”

Border Patrol officials say they are planning for as many as 18,000 arrivals daily once the health policy, known as the Title 42 authority, expires in May. Last week, about 7,100 migrants were coming a day to the southern U.S. border.

But the way former Trump immigration officials see it, Texas and Arizona can pick up where the federal government leaves off once the policy ends.

In Arizona, Republican Gov. Doug Ducey has also been under pressure within his party to declare that the state is being invaded and use extraordinary powers normally reserved for war. But Ducey, who is term-limited and not on the ballot in 2022, has not embraced the theory and has avoided commenting directly on it.

Arizona Attorney General Mark Brnovich, a Republican, issued a legal opinion in February declaring that Ducey has the power to use National Guard troops and state law enforcement to forcibly send migrants back. Brnovich is locked in a tough Republican U.S. Senate primary in which border security is a top issue.

Driving the effort on the right is the Center for Renewing America, a conservative policy think tank led by former Trump administration officials.

It includes Ken Cuccinelli, former acting director of Homeland Security official under Trump.

He argued that states are entitled to defend themselves from immediate danger or invasion, as it is defined by the “invasion clause,” under the “states self-defense clause.”

While speaking Tuesday to a conservative talk-radio station, Abbott’s remarks about constitutional authority were in relation to Congress, which he said had the only power to reduce the flow of migrants.

“We’ll be taking unprecedented action,” Abbott told radio station KCRS. “Congress has to stop talking about it, has to stop complaining about it, has to stop going to the border and looking at it. Congress has to take action, just like Texas is taking action.”

Asked if he considered what was happening on the Texas border “an invasion,” Abbott did not use those words but said he would be discussing it Wednesday.

Cuccinelli said in practice, he envisions the plan would look similar to the enforcement of Title 42, which circumvented U.S. obligations under American law and international treaty to provide asylum. Many of the current asylum-seekers have been coached by left-wing activists to falsely claim asylum in order to clog up the system while their cases are processed.

But under the Biden administration, even that level of scrutiny has gone by the wayside, with field agents having now been deputized to act in place of immigration courts. ICE, the agency once tasked with enforcing the law, instead has been redirected to assist the secret transport of illegals into the country’s interior.

Cuccinelli said he has not spoken with Abbott but that the governor’s current plan, known as Operation Lone Star, had put little dent in the number of people crossing the border.

“Until you are actually returning people to Mexico, what you are doing will have no effect,” Cuccinelli said.

Emily Berman, who teaches constitutional law at the University of Houston, said the “invasion clause” cited by proponents is tucked into a broader constitutional assurance that the U.S. must defend states from invasion and domestic violence. Additionally, she said, the “state self-defense clause” says states cannot engage in warlike actions or foreign policy unless invaded.

Berman said she hasn’t seen the constitutional clauses used since the 1990s, when the courts ruled that they did not have jurisdiction to decide what qualified an invasion, but believed that one could only be done by another governmental entity.

For example, Berman said, the invasion of Ukraine by Russia can be qualified as one because it is an outside government breaching another country’s boundaries with the use of military force.

“Just because the state says that it is an invasion that doesn’t necessarily make it so, it is not clear to me what additional legal authority that conveys on them,” Berman said, adding that state officials can enforce state laws, but the line is drawn at what the federal law allows.

U.S. Rep. Henry Cuellar, a Democrat whose district includes the Texas border, has criticized the Biden administration over border security and ending Title 42. But he does not support states trying to use new powers that would let them “do whatever they want.”

“I think it should be more of a partnership instead of saying, ‘Federal government, we don’t think you’re doing enough, and why don’t we go ahead and do our own border security?’” he said.

Adapted from reporting by the Associated Press

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