Since President Joe Biden assumed office in January 2021, the United States and Texas have experienced an unprecedented surge of illegal aliens crossing our southern border.
Shockingly, this surge has been met not with an overwhelming response to combat it, but with rampant abuse of existing federal immigration law and a myriad of illegal categorical parole programs allowing many who cross the border illegally to remain in the country indefinitely, often with transportation to a destination of their choice and an NGO sponsor working to facilitate their enrollment into our welfare state.
In the face of this crisis, many may wonder what tools the state has to combat what is normally the purview of the federal government.
Several grassroots groups, including Texans for Strong Borders, have proposed a novel solution: for the state of Texas to declare an invasion under Article I, Section 10, Clause 3 of the U.S. Constitution, also called the State Self-Defense Clause.
It reads:
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.
While the U.S. Constitution makes clear Texas retains the power to protect its borders, where is that power vested in the Texas government? A review of the Texas Constitution shows the power to combat invasions is clearly vested in the governor, as articulated in Article 4, Section 7:
…He shall have power to call forth the militia to execute the laws of the State, to suppress insurrections, and to repel invasions.
It is clear to even the casual observer that the millions of illegal border crossings are not merely the product of stochastic economic migration or true seekers of political asylum, but a coordinated invasion funded by government-backed NGOs, executed by narcoterrorist Mexican cartels, and abetted by the intentional dereliction of duty by the Biden administration under Homeland Security Secretary Alejandro Mayorkas.
Indeed, an “actual invasion” for constitutional purposes need not be a formal military operation by the uniformed armed forces of another nation-state. According to James Madison at the Virginia Constitutional Ratifying Convention, Article I, Section 10, Clause 3 could be used by the states to “suppress smugglers” specifically.
At Texans for Strong Borders, we have been calling on Gov. Greg Abbott to use his constitutional authority to secure the Texas border and protect the sovereignty and citizens of our state. Although Abbott has taken unprecedented action at the Texas border, his maneuvers ultimately amount to cooperating with a federal system that is more concerned with processing individuals who cross our border and enter our country illegally than denying entry to illegal aliens and deporting the ones who do make it into our nation.
With Abbott thus far declining to take up his full authority, we believe the 88th Texas Legislature should pass a joint resolution of the House and Senate compelling the governor to use his power as commander-in-chief to deploy necessary military forces to deny illegal aliens entry at the Texas border and to expel those who cross illegally back across the Rio Grande. We support the resolution drafted and passed by the Republican Party of Texas asking Governor Abbott to take action pursuant to his powers under the U.S. and Texas Constitutions without delay.
Although Gov. Abbott has made allusions to these powers, he has not utilized them under Operation Lone Star, and indeed has not challenged federal inaction at the border with direct action of his own. For the sake of our state and its future, he must act, and soon.
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