Texas Gov. Greg Abbott is openly musing about declaring Texas under “invasion” in what would be a radical, legally dubious attempt to address the state’s migrant crisis.
The plan would involve invoking war powers and allowing state police to begin rounding up migrants and asylum-seekers and then dispatching them over the border into Mexico—at a moment when federal authorities are bracing for the number of migrant crossings to potentially triple this summer.
Constitutional experts say this loopy “invasion” scheme has little chance of surviving the legal challenge that would, in all likelihood, be launched instantaneously by President Joe Biden’s Department of Justice.
But that hasn’t stopped Abbott from publicly insisting that he’s exploring the idea in depth.
According to a highly doubtful theory now being pushed in conservative circles, language in the Constitution could be read to suggest that states can assert war powers on their own if they’re facing a foreign invasion. Doing so would allow Abbott to assume powers that are normally reserved for the federal government.
“This is something that I began studying when I was the attorney general of Texas,” Abbott said during a roundtable on Thursday. “The operation, as it would work, is to [detain] these people and deport them immediately.”
Abbott continued: “So, is it something we're looking into? Yes. You know me well enough that you know I will look at every legal issue about a policy before we undertake action on that issue.”
Abbott went on to say that he’s fully aware he could be putting Texas police officers in legal jeopardy. The former head of Border Patrol sent his general counsel a memo saying “it could expose law enforcement in the state of Texas to being prosecuted.”
The Biden administration has said it’s bracing for another wave of migrants with the pending rollback of Title 42, a Trump-era policy that allowed border guards to turn around most people except for unaccompanied children.
The policy was initially justified as a public health measure in response to the pandemic. In late April, a federal judge blocked the Biden administration from repealing Title 42 after multiple states filed a lawsuit claiming the move would “result in an unprecedented crisis at the United States’ southern border.” The U.S. Centers for Disease Control and Prevention recently announced that vaccinations and lower COVID-19 rates meant that the policy should end in May.
U.S. border authorities detained 210,000 migrants attempting to cross the border in March, the highest monthly figure in two decades and a 24 percent surge from the same month a year earlier. The Department of Homeland Security is preparing for the number of migrants entering the U.S. to triple to 18,000 per day.
Prominent conservatives, including former high-ranking members of the Trump administration, are urging Abbott to take unprecedented measures.
One of the more prominent advocates is Ken Cuccinelli, who served as Trump’s Senior Official Performing the Duties of the Deputy Secretary of Homeland Security (whose failure to win Senate confirmation explains that awkward job title).
Cuccinelli published a detailed policy brief on the subject in October that argued: “The states have no choice but to lead. This begins with a declaration of invasion by Texas and other border states.”
Tom Homan, Trump’s former acting director for Immigration and Customs Enforcement, said in March that he spoke to Abbott about the idea.
Declaring an “invasion” might serve Abbott’s political ambitions in light of the Texas gubernatorial election coming up in November.
But legal experts who spoke with VICE News said it stands little chance of surviving in court.
“The power to decide what is an invasion and the power to defend the United States against an invasion rests solely with the federal government,” Ric Simmons, an expert on Constitutional law at Ohio State University Moritz College of Law, wrote to VICE News in an email.
In other words, Simmons said, the Supreme Court could be expected to shoot this idea down pretty fast, even though it currently features a 6-3 conservative majority.
“The current Supreme Court has, if anything, been even more deferential to the federal government than past courts on questions of immigration, as we can see from a number of cases during the Trump presidency,” Simmons said. “So Governor Abbott does not have the power to declare an invasion, and if he tried to do so, the courts would almost certainly block any such attempt.”
Carl Tobias of the University of Richmond School of Law agreed, and added this may explain why Abbott is moving cautiously for now.
“Were Texas to attempt this, DOJ would probably challenge the action in federal court and win under the relevant precedents,” Tobias told VICE News.
Geoffrey Hoffman, director of the University of Houston's immigration clinic, told the Houston Chronicle that Abbott’s posturing looks like a “politically motivated maneuver” intended to appease the far-right for political gain.