AUSTIN, Texas — Texas Gov. Greg Abbott on Thursday told state police and Texas National Guard soldiers to begin stopping illegal immigrants and taking them to ports of entry, no longer taking them into state custody.
The move immediately was denounced from the left and right.
Abbott, though, defended his action. He said President Joe Biden has failed to prevent an “invasion” of a state, by relaxing his predecessor’s policies in a way that has fueled a surge of unauthorized immigrants.
Still, Abbott stopped short of appeasing immigration hard-liners. He neither declared an “invasion” nor ordered migrants to be thrust back across the Rio Grande River at points where they crossed.
“No significant changes to current policy. This is still catch and release,” tweeted a group associated with former Homeland Security official Ken Cuccinelli, who has favored a harsher approach.
The effect of Abbott’s order is unclear. An Abbott spokeswoman did not return a request for comment. Neither did the Department of Public Safety, which has deployed thousands of officers to the border for the past 16 months.
Legal scholars have called the approach legally dubious and say it will almost certainly invite lawsuits. One speculated that Abbott may be trying to see whether, with the U.S. Supreme Court’s new conservative majority, he can trigger a reopening of a 2012 decision that voided much of Arizona’s anti-immigration law..
Under the U.S. Constitution and federal law, the federal government has the sole duty to enforce immigration and border policy. In specific instances, known as “Section 287(g) agreements,” however, it has deputized state and local law enforcement to help enforce federal immigration law.
Thursday’s move sets Abbott, a Republican, on an even more dramatic collision course with the administration of Biden, a Democrat whom the Texas governor said created a migrant surge by signaling to Mexican drug cartels that the border would be wide open.
“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 written statement.
“The cartels have become emboldened and enriched by President Biden’s open border policies, smuggling in record numbers of people, weapons, and deadly drugs like fentanyl.”
Abbott’s executive order directs Department of Public Safety officers and Texas National Guard troops to apprehend migrants and “return those illegal immigrants to the border at a port of entry.” But the order has no details about how the policy will be enforced. Abbott has previously said the idea of a state’s declaring an invasion and taking over immigration enforcement could put state law enforcement at risk of being prosecuted by the U.S. Department of Justice.
For months, Abbott has been under pressure from officials of former President Donald Trump’s administration to declare the immigrant surge an “invasion” under a rarely invoked clause of the U.S. Constitution. In his March GOP primary, Abbott faced an opponent, former Dallas GOP state Sen. Donald Huffines, who vowed he as governor would do that.
On Tuesday, Cuccinelli, who served in Trump's administration, appeared at a news conference in Brackettville, where Kinney County officials made their own “invasion” declaration — a move without legal grounding.
Later Tuesday, Lt. Gov. Dan Patrick signaled he supports the invasion declaration.
“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. “Put hands on people and send them back.”
Speaking about imports of the deadly drug fentanyl, Patrick said, “We’re being attacked, just as we were on Pearl Harbor. This is an attack on the American public, it’s an attack on our young people, it’s an attack on our border. And the president needs to stand up and fight back. And if he doesn’t, then he needs to step down.”
Proponents of the “invasion” legal theory, though, complained that Abbott’s action on Thursday didn’t go far enough because he didn’t order state officials to return migrants to Mexico.
Constitutional scholars say it’s well settled that the federal government enforces immigration law.
In his executive order, Abbott pointed to a section of the U.S. Constitution that says states cannot engage in war, unless “actually invaded, or in such imminent Danger as will not admit of delay.”
He said the federal government “has abandoned the covenant” under which the U.S. “shall protect each (State in this Union) against Invasion,” and the states in turn cede control of foreign and military policy, duties and tariffs to the central government.
The Constitution was written at a time when it could take weeks for word of an attack on a state to travel to the nation’s capital. Some scholars say yanking the “invasion” reference out of its 18th-century context to justify autonomous action by states is a reach in a day of instantaneous communications.
“The notion that the states or counties could declare that the president’s failure to control the border and enforce immigration law constitutes an invasion giving them the power to intervene strikes me as lunacy which the courts would never uphold,” said Lackland H. Bloom Jr., a professor at the Southern Methodist University Dedman School of Law.
Until Thursday, state police and Guard soldiers whom Abbott dispatched to the border as part of Operation Lone Star did not take migrants back to the border — but instead arrested them on state trespassing and other state charges.
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