As the Biden administration’s open-border policies create chaos on the southwest border, some state lawmakers have advocated for a strategy that would sidestep the federal government to address the problem. State Sen. Bob Hall (R–Edgewood) recently interviewed Ken Cuccinelli, former attorney general of Virginia and senior fellow at the Center for Renewing America.

“Every town is a border town now with this open-borders policy,” said Cuccinelli. He believes the American people cannot wait any longer for the federal government to act, and he has developed a plan for states to declare an invasion and secure the border themselves.

Background

Article IV, Section 4 of the U.S. Constitution, known as the Guarantee Clause, states that the federal government will ensure each state is provided not only a Republican form of government but also protection from invasion.

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature canno​​t be convened) against domestic Violence (emphasis added).

“The Constitution is the establishment of the federal government by the state governments, and the states retained authority to protect themselves in instances where the federal government failed,” explained Cuccinelli.

Article I, Section 10, Clause 3 of the U.S. Constitution ensures states can protect themselves in the event of an invasion.

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 (emphasis added).

“And Texas is being invaded,” said Cuccinelli.

How to Stop it

“Article 1, Section 10 power is available to your state through your governor, who is your commander-in-chief,” said Cuccinelli. “No one can make him declare this invasion; he solely holds this constitutional authority.”

Although Gov. Greg Abbott “invoked the invasion clauses of the Texas and U.S. constitutions” Tuesday, he will not expel illegal aliens, ultimately changing nothing about the current situation.

“Right now, you’re contending with the free movement of people and drugs, with accompanying abuse, and rape, and extortion, and murder, frankly, across the U.S. border—including the Texas border—all being run by the most evil, vicious people in the Western Hemisphere: the drug cartels,” said Cuccinelli.

Although Texas has done more than any other state to stop the invasion, Cuccinelli said it’s not enough until those illegally crossing the border know they have a low probability of entering and staying in the U.S.

Therefore, Cuccinelli said Abbott should declare an invasion and use Texas’ state police, the Texas National Guard, and other deputized law enforcement to repel illegal aliens at the border.

The Texas Legislature must then support the defensive effort by allocating funds and ensuring the appropriate law enforcement personnel are authorized to act on the state’s behalf.

Texas can “protect [its] border in between the legal ports of entry. The legal ports of entry should be left to federal officials,” said Cuccinelli. “But everything else is fair game for turning people back in to Mexico who attempt to cross illegally.”

If the state did these things, Texas Attorney General Ken Paxton would be called upon to defend Texas’ actions before the federal government and its courts. According to Cuccinelli, what the courts should find—if they follow precedent—is that they lack the authority to decide the matter.

Moving Forward

Securing the border and protecting Texans is one of eight GOP priorities that thousands of Republican convention delegates chose for the upcoming 2023 legislative session​.

So far, 37 Texas counties have issued invasion declarations urging Abbott to take further action: Kinney, Goliad, Terrell, Parker, Wise, Edwards, Atascosa, Presidio, Tyler, Live Oak, Rockwall, Johnson, Wilson, Hardin, Chambers, Ellis, Orange, Liberty, Throckmorton, Madison, Jasper, Van Zandt, Wichita, Clay, Jack, Hunt, Montague, Hood, Wharton, Burnet, Collin, McMullen, Hamilton, Lavaca, Ector, Leon, and Navarro counties.

Sydnie Henry

A born and bred Texan, Sydnie serves as the Capitol Correspondent for Texas Scorecard. A 2021 graduate of Patrick Henry College with a B.A. in Government, Sydnie is utilizing her research and writing skills to spread truth to Texans.

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