How governor Greg Abbott is using an obscure ‘invasion’ legal theory for a border power grab in Texas

If you were to believe Texas governor Greg Abbott, you would think a literal army of migrants, loaded down with drugs and armed with the best guns the Sinaloa cartel can buy, is marching on the Lone Star State.

“Your inaction has led to catastrophic consequences. Under your watch, America is suffering the highest volume of illegal immigration in the history of our country,” Mr Abbott wrote in a letter to the White House in November, saying the state was under “invasion by the Mexican drug cartels.”

Of course, drugs like fentanyl are largely brought into the US by American citizens at ports of entry, and most migrants are not cartel members, but those distinctions are rarely mentioned by the governor’s office.

Instead, in response to this purported cartel-migrant invasion, the state has carried out what amounts to a mass military buildup at the border, deploying thousands of state police and National Guardsmen, lining the riverbanks with walls and razor wire, and, this July, controversially putting floating border barriers in the Rio Grande itself, ensnaring exhausted migrants and reportedly killing at least one person, according to Mexican officials.

As Jessie Fuentes, a Texas river guide who is suing the state over the effort recently told The Independent, “You’ve taken a beautiful waterway and you’ve converted it into a war zone.”

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The emergency actions being taken by the governor’s office rest in part on a controversial legal theory about the Constitution that Mr Abbott and his fellow border state conservatives have been pushing towards for years: that immigration itself is an invasion, so the US Constitution grants states emergency war powers to stop it.

Starting in 2022, Mr Abbott’s office began making the argument that under the Constitution, which allows states to take emergency wartime action if they’re “actually invaded,” Texas could ramp up its powers over fighting illegal immigration, an area that’s the province of the federal government. The governor argued that the “invasion” of the state authorised him under the state and US Constitution to deploy gunboats, border walls, and National Guardsmen, as well as state police who could arrest and return migrants to the border.

Legal experts say that the constellation of different people crossing the border – asylum-seekers, economic migrants, cartel members, from a variety of different nations – do not constitute the kind of pressing, military attack the Constitution considers an “invasion.”

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“The theory that Abbott is relying on here is that the influx of undocumented individuals is an actual invasion. That also doesn’t pass muster,” Katherine Yon Ebright, counsel at the Brennan Center’s Liberty & National Security Program, told The Independent.

“We have a series of court cases from the 1990s in which states, including New Jersey, went into federal court and said, ‘All of this immigration is an invasion,’ and [federal] courts ... said, ‘No. No it’s not. Immigrants are not an invasion.’”

Texas’s embraced this line of thinking anyway in 2022, after courts ruled that the state was violating the law by arresting migrants on state trespassing charges, a justification a Texas court found to be a pretext for the kind of immigration enforcement that’s the power of the federal government.

The new “invasion” play is just a “backdoor into immigration enforcement,” according to Ms Yon Ebright.

David Bier, in an article for the libertarian Cato Institute, has argued equating immigration to invasion is “a completely unserious attempt to demand extraordinary, military-​style measures to stop completely mundane actions like walking around a closed port of entry to file asylum paperwork or violating international labor market regulations in order to fill one of the 10 million job openings in this country.”

The Independent has contacted the governor for comment.

Outside of the legal criticisms of the governor’s stance, others have taken issue with the message of declaring immigrants to be invaders.

Some have noted that rhetoric from Mr Abbott and his lieutenant governor Dan Patrick bears a striking similarity to that of the El Paso mass shooter, who killed 23 mostly Latino people in 2019. The shooter claimed the white supremacist attack was “in response to the Hispanic invasion of Texas.”

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As far back as 2021, the governor and his top deputies have described a nefarious plot by Democrats to encourage immigration, implicitly that from Latin American countries, and transform Texas politically.

“Unless you and I want liberals to succeed in their plan to transform Texas — and our entire country — through illegal immigration, this is a message we MUST send,” Mr Abbott wrote in a fundraising appeal, which he later apologised for.

“We are being invaded,” Mr Patrick said that year. “That term has been used in the past, but it has never been more true.”

The governor’s renewed talk of an invasion is a dog whistle that brings back memories of the El Paso shooter’s hateful words, according to Zachary Mueller, political director with immigration rights group America’s Voice.

“He knows what he’s doing, and he’s courting political violence for his own political fortunes,” Mr Mueller told The Texas Tribune in November, when the governor unrolled his “invasion” plan out to the public.

Nonetheless, political pressure has been building across the Republican ecosystem to adopt such radical stances, according to observers.

In February 2022, Mark Brnovich, then the attorney general of Arizona, published an opinion arguing that the “on-the-ground violence and lawlessness at Arizona’s border caused by cartels and gangs” constitutes a legal invasion, entitling the state to take emergency action.

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The idea quickly caught on, with backers ranging from far-right gubernatorial candidate Kari Lake to former Trump Homeland Security officials like Ken Cuccinelli pushing Republican leaders to declare an invasion.

Mr Cuccinelli blasted Governor Abbott in The New York Times last March, claiming he hadn’t “moved the needle one iota for the simple reason that they’re not returning people to Mexico.”

“The right wing of Abbot’s Republican party really just grabbed onto that as a panacea, declare the invasion,” journalist Todd Bensman, author of Overrun: How Joe Biden Unleashed the Greatest Border Crisis in U.S. History, told The Independent.

“People in Texas, everywhere else that calls it an invasion, meant in the legal sense, they’re just hammering their elected leaders over the head…During the campaigns in November, it was still really a strong groundswell on the far-right in these states.”

The push into novel legal territory is the latest attempt by states and private individuals to seize immigration policy from federal hands. In recent years, Texas and Arizona have seen experiments with a variety of tactics, from building ramparts out of shipping containers, to erecting privately funded border walls.

Some of these efforts have faced challenges – Arizona was forced to take down its shipping container wall after threats from the Department of Justice – while others go unchecked.

The DoJ has challenged aspects Texas’s military buildup at the border under environmental law, arguing in a July lawsuit states can’t erect a barrier within the Rio Grande without federal permission.

As Mr Bensman argues, under the Biden administration, border states and the federal government are often working at cross-purposes these days. The federal government, enacting immigration law, allows some migrants into the country to await immigration proceedings. State governments like Texas, meanwhile, want to shut down large parts of the current immigration wave.

“You’ve got this clash going on of opposing goals and policies,” he said. “States want to stop and block them, and Biden’s Border Patrol agents, who catch and release them into the interior. There’s a very interesting dynamic where the feds are undermining the Texans, but the Texans are also undermining the feds.”

Governor Abbott has vowed to fight the White House all the way to the Supreme Court over the floating barriers, but that may just be the beginning of the battle. It’ll be a fight on two fronts: over the facts of what’s really happening at the border, and who has the power to respond.