FederalImmigration & BorderIssuesStatewide NewsAbbott Invokes U.S. Constitution’s ‘Invasion’ Provision, Stops Short of Ordering Deportations by State

Abbott’s order invoked the U.S. Constitution’s provision requiring the federal government to protect states from “invasion,” which members of the Texas Legislature have explored and other elected officials have urged.

However, it stops short of asking state police and guardsmen to deport illegal aliens.

Specifically, Abbott’s executive action alleged that President Biden “abandoned the covenant” in Article IV, Section 4 of the federal Constitution, which states: “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 cannot be convened) against domestic Violence.”

A portion of the executive order also references Article I, Section 10, though it refers to past actions of the Abbott administration including entering border security agreements with Mexican states and commencing the border wall project.

Former Virginia Attorney General Ken Cuccinelli, who served in the U.S. Department of Homeland Security during the Trump administration, is a staunch supporter of efforts to declare illegal immigration an invasion.

Cuccinelli commented on Abbott’s executive order along with Russ Vought, president of the Center for Renewing America.

“We acknowledge Governor Abbott’s recognition that the facts on the ground along the border comport with the Constitution’s understanding of an invasion,” Cuccinelli and Vought said.

“However the Governor does not appear to formally declare an invasion nor direct the National Guard and Department of Public Safety to remove illegals across the border directly to Mexico. That is critical. Otherwise this is still catch and release.”

Vought and Cuccinelli first floated the idea of declaring an invasion over a year ago to Texas and Arizona officials.

The document also referenced the deaths of 53 illegal aliens last week in a human smuggling scheme. Two accused human smugglers are facing the death penalty for the crime.

Abbott pondered the prospect of declaring an invasion in April but expressed his concerns that Texas law enforcement conducting their own deportations could be a criminal offense under federal law.

U.S. Rep. Chip Roy (R-TX-21) contended in an interview with The Texan last month that it is the State of Texas’ responsibility to find a way to protect the border without placing law enforcement in jeopardy of “litigation” or criminal prosecutions.

Roy joined local officials in Brackettville on Tuesday as they declared an “invasion” in Kinney County, citing the steep cost of illegal immigration and the increased crime that accompanies unlawful crossings.

In a Fox News appearance this week, Lt. Governor Dan Patrick planted his flag on the issue, urging officials to declare an “invasion” on the southern border.

“Some counties in Texas are ready to declare an invasion into their counties,” he said of the officials from three border counties who convened this week to do so. “I’ve been criticized for saying this for years — that it’s an invasion of people, an invasion of drugs into our country. It’s been going on for 30 years.”

“We’ve apprehended enough fentanyl crossing the border to kill just about every American,” Patrick said, stressing the severity of the drug trafficking problem.

Patrick called on Biden to declare an invasion and halt imports from China and Mexico until the former stops production in its fentanyl labs and the latter secures its side of the border. While not as direct as the counties, he said that it grants the State of Texas the power to “put hands on [illegal immigrants] and send them back.”

This decision by Abbott is an about-face from his rhetoric during the GOP primary for governor this year, wherein he tip-toed around the issue until after his victory. His challengers, Don Huffines and Allen West, both touted the declaration of invasion while the incumbent remained silent on that option. Another part of Huffines’ platform was to shut down commerce from Mexico to force Texas’ southern neighbor to shore up its side.

While he didn’t adopt this plan wholesale, in April, Abbott ordered enhanced vehicle inspections at certain points of entry from Mexico. This created a commercial logjam, causing hours-long backups of traffic hoping to cross into the U.S. It also spurred Mexican officials in multiple states to agree to enhanced security measures on their side of the border.

The governor also directed state officials to provide bus transportation to Washington, D.C. for illegal immigration. He characterized it as bringing the problem of illegal immigration to Biden’s doorstep.

The challenges flamed out on primary night, neither major challenger eclipsing 13 percent of the vote. But throughout the campaign, Abbott moved right on various issues and aimed his rhetorical cannon directly at the White House and its federal border policy, where it has remained ever since.

In his announcement, Abbott jabbed the White House, saying, “Cartels have become emboldened by Biden’s open border policies.”

Illegal immigration has escalated in recent months as the Biden administration seeks to discontinue the Title 42 public health policy implemented at the beginning of the COVID-19 pandemic. The public health order, which is still in place due to a U.S. district judge’s preliminary injunction, allows the government to rapidly expel illegal aliens at the border.

However, the U.S. Supreme Court decided last week that it is lawful for the federal government to end former President Trump’s “Remain in Mexico” policy.

Abbott recently announced $30 million in additional grant funding for local governments under Operation Lone Star, the State of Texas’ border security stratagem.

A copy of Abbott’s executive order can be found below.