Texas is challenging federal control of policy on the US-Mexico border by exploiting what it sees as a constitutional loophole around the definition of an “invasion” but that migrants rights activists see as dangerously ramping up fears with racist language.
Immigration policy has long been under the purview of the US federal government – not individual states – since the US supreme court ruled so in a landmark United States v Arizona case in 2012.
But in November of 2022, rightwing Republican governor Greg Abbott invoked the “invasion” clauses found in the Texas and US constitutions, likening migrants at the border to a public foreign enemy that therefore gave him the power to enact his own border policies.
The Texas Civil Rights Project called the move a “political ploy”.
“Calling immigrants an invasion is extremely dangerous,” said Roberto Lopez, senior advocacy manager for the organization’s “Beyond the Border” program.
Lopez added: “We have seen so many shootings and more rise in hate crimes [against migrants.] This is all connected to this rhetoric of associating people who are trying to seek safety with being like a literal attack on the United States. That is just giving a lot of fire and energy to militia groups and people who are filled with hate.”
Abbott is already seeking to take Texas border control into his own hands, as evidenced by the state’s recent announcement of a new “border force” that could allow its agents to “arrest, apprehend or detain persons crossing the Texas-Mexico border unlawfully”, if it gets past the state legislature. And with a conservative-majority in both the Texas state house and senate, that likelihood is high.
Abbott has made his interpretation of the “invasion clauses” clear. At the time of announcing his border force, Abbott said: “I invoked the Invasion Clauses of the US and Texas Constitutions to fully authorize Texas to take unprecedented measures to defend our state against an invasion.”
“I’m using that constitutional authority, and other authorization and Executive Orders to keep our state & country safe.”
But the legal language Abbot is citing is not that simple, according to Barbara Hines, a law professor at the University of Texas and founder of its law school Immigration Clinic.
Hines called the state’s justification for creating its own immigration laws “unprecedented and extreme”.
“Federal immigration law is a federal issue. It’s not based on the Texas constitution,” Hines said.
Article four of the Texas constitution states: “[The governor] shall be Commander-in-Chief of the military forces of the State, except when they are called into actual service of the United States. He shall have power to call forth the militia to execute the laws of the State, to suppress insurrections, and to repel invasions.”
Abbott argues the increase of migrants at the border merits drastic actions such as establishing a state police force specifically to rein in immigration.
Migrant rights groups say people crossing the border – many of whom are seeking to legally claim refugee status – does not constitute an invasion. Instead, they say such language is racist and inflammatory. In 2019 a white supremacist attacked a Walmart in El Paso, seeking to kill Latinos and fueled by anti-immigration rhetoric. The gunman killed 23 people.
Many legal scholars believe rightwing arguments over the invasion clause in the Texas constitution are neutralised by the supremacy clause in the US constitution. That states that “the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions,” according to Cornell Law School’s Legal Information Institute.
But in the US constitution, the word “invasion” is mentioned twice: once in article one, section 10 and again in article four, section four. That gives Abbott, and some rightwing activists, hope that their arguments might prevail on a conservative supreme court.
In the first instance, the US constitution specifically limits the power of states to keep troops, like Operation Lone Star a border force, unless invaded..
“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.”
When invasion is mentioned for the second time, the constitution more broadly says that the federal government is responsible for protecting its states against an 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 cannot be convened) against domestic Violence.”
Hines explained that although the word “invasion” is mentioned twice in different contexts, “there’s this theory of law that the same term or word in the constitution, should mean the same thing [if repeated].” The key question is likely to be whether or not “invasion” in this context means solely by another state or armed force.
Abbott’s policies, like his potential border force and the existing initiative Operation Lone Star, are already being questioned as illegal by civil rights groups others. They have faced legal challenges by civil rights advocacy groups and an investigation by the US Department of Justice.
If such a case against Texas materializes and moves up through the courts – especially all the way up to the US supreme court – it’s possible the US will have to revisit the question of who gets to control the border.
Some say that’s exactly what Texas lawmakers in favor of state control of the border want, especially as the current supreme court is dominated by hardline conservative judges.
Texas’s far-right attorney general Ken Paxton said as much in a senate committee hearing on the subject:
“We’re in unchartered territory as far as knowing what states can do because states have never had to wonder or really test this,” Paxton said. “So, I think part of this is going to be, we’re going to have to figure out where are the areas that we want to test. And that’s part of why I’ve been saying for two years, we should test U.S. v Arizona. We should test to see if the states can protect themselves, given the circumstances we’re in that we’ve never been in before.”
Hines said: “This supreme court has not respected precedent in other situations, for example, in the abortion case. And this state legislature has been willing to pass unconstitutional laws to test them.”
“I am hopeful that as conservative as the supreme court is that they’re going to respect precedent. It is unheard of that states could enforce federal law as to who is entering the United States without permission and who is not, and to create a state trespass law for people entering the United States that has been in sole federal power since the late 1800s.”