The Biden administration’s commitment to dismantling southern border protections and Trump-era policies, most recently Title 42, has exacerbated the devastating border crisis. Last March, 172,331 illegal immigrants were encountered by Customs and Border Protection (CBP). This April, CBP encountered a staggering 221,303 illegal immigrants on the southern border, reaching an unprecedented 1.06 million encounters for the first half of the 2022 fiscal year. DHS released 80,000 of those migrants into the interior of the United States.
This influx of undocumented immigrants has had drastic effects. Gov. Greg Abbott’s Operation Lone Star program, created to fill the gaps created by the federal government’s failures, has resulted in nearly 14,000 criminal arrests, 3,800 firearms apprehended, and more than 300 million lethal doses of fentanyl seized at the border. Texas Attorney General Ken Paxton reported in 2021 that Texas taxpayers paid more than $850 million annually to support services for illegal immigrants.
Rep. Chip Roy, who represents the 21st District of Texas, which includes a part of San Antonio, a leading hub for human trafficking, exemplified the increasing dangers for citizens as well migrants when he testified for the House Committee on General Investigating, explaining a recent San Antonio 911 call. The Bexar County Sheriff’s office, Homeland Security Investigations, Texas DPS, and San Antonio Police Department all worked to search for a large tanker truck after a distressed migrant pled with a 911 dispatcher for help, explaining in Spanish that the passengers were trapped in the vehicle and dying, as they ran out of air. The immigrant reported 80 trafficking victims, none of which were located or saved.
Last year Border Patrol found 383 dead migrants, the highest toll in a decade. Texas ranchers, many of whom request to remain unidentified for fear of retribution by the Mexican cartels, have discovered an increasing number of dead migrants scattered around their properties.
Texas, along with the state of Missouri, has filed suit against the Biden administration’s suspension of the MPP, Migrant Protection Protocols, commonly referred to as the “Remain in Mexico” policy. The Supreme Court heard oral arguments on April 26 but even if the suspension is reversed, it will be too little, too late, to adequately protect and provide for Texans.
The Texas House Committee on General Investigating, chaired by Rep. Matt Krause, has proposed a creative route to resolve the border crisis plaguing our nation. Writing to Paxton, the chairman has requested Texas explore the legality of utilizing the “State Self Defense” or “Invasion Clause” of the U.S. Constitution to facilitate Texas to independently secure the border, as the Biden administration has undeniably failed to do so.
Prior to this appeal, the committee received testimony from many of Texas’ key players. Tracy Norris, major general of the Texas Army National Guard, explained that the “federal government has provided no support for this mission [protection of the border]” and even the Office of the Attorney General acknowledged the crisis “immediately endangers our citizens and law enforcement personnel” as the Biden administration’s refusal to acknowledge the severity of the crisis has overburdened agents and staff, forcing the state to “stand alone against this influx.” The overwhelming consensus is the increasing necessity to act.
Krause’s inquiry referenced the recent opinion by Arizona Attorney General Mark Brnovich, in which he claims the crisis at Arizona’s southern border, inflamed by cartel and gang violence, satisfies a series of constitutional requirements that empower states to act autonomously.
Article I, Section X of the U.S. Constitution, known as the “State Self Defense Clause,” dictates that a state may not defend itself, “without the Consent of Congress … unless actually invaded, or in such imminent Danger as will not admit of delay.” Justice Scalia postulated this clause “leaves intact [State’s] inherent power to protect their territory”.
Additionally, the “Invasion Clause,” Article IV Section IV ensures that “The United States shall guarantee” to “protect each of them [each State] against Invasion.” The contestation lies in whether the border crisis, thousands of migrants flooding into southern states daily, qualifies as an invasion.
Those who view constitutional jurisprudence with an originalist lens may turn to Johnson’s 1785 English dictionary, which was widely popular as the Constitution was drafted; defining invasion as a “hostile entrance upon the rights or possessions of another; hostile encroachment.” Contrarily, the Cambridge Dictionary modernly defines an invasion as “an occasion when a large number of people or things come to a place in an annoying and unwanted way.” In Federalist No. 43 James Madison wrote that protection against invasion is “not only against foreign hostility but against ambitious or vindictive enterprises.”
Section IV contains no explicit limitation on the interpretation of “invasion.” Invasion can therefore be applied broadly to hostile non-state actors such as cartels and gangs.
Members of MS-13 have been arrested at the border in the past year, charged with crimes from drug possession to aggravated homicide. According to Customs and Border Protection data, the agency had arrested 2,424 criminal aliens by March of this year, coming just 14 arrests shy of the total arrests in 2020; crimes of those arrested include homicides, rapes, robberies, and deaths caused by driving under the influence, evidently qualifying as unwanted and a hostile encroachment.
Much of the uncertainty moving forward comes from the lack of precedent set by the courts, previously ruling in Barber v. United States that the Invasion Clause was a nonjusticiable political question. However, in Boyd v. United States Justice Joseph Bradley articulated the “essence of the offence,” an unconstitutional violation of the Fourth Amendment, was an “invasion of his indefeasible right of personal security, personal liberty and private property.”
By delineating invasion of privacy as multifaceted, the southern border crisis can be applied. With Texans having their personal safety threatened, land and property burglarized, and ability to defend themselves limited, are they not facing a similar persecution?
As the court explained, “the principles laid down in this opinion affect the very essence of constitutional liberty.” Expressed in California v. United States, the situation involves “matters of foreign policy and defense” which are issues the courts have been “reluctant to consider.” The time for disinclination is over.
Lastly, The Import-Export clause of Article I Section X, Clause II, recognizes states’ sovereign authority when “ absolutely necessary for executing its inspection Laws.” Abbott has directed DPS to conduct enhanced inspections of vehicles as they cross ports of entry into Texas, mitigating the transport of illegal goods; however, without the full ability to detain or deport, state agents are limited.
A team of Heritage Foundation experts has urged states to use “all lawful tools” to address the “incalculable” suffering caused by the southern border crisis. It is evident the atrocities occurring at the border constitute an invasion, threatening the safety, security, and prosperity of the American people. With the Biden administration failing to fulfill its duty to the American people, it is evident that the state of Texas must pull itself up by its bootstraps and utilize its constitutionally vested ability to defend its citizens.