By Robert T. Garrett and Allie Morris
AUSTIN – Gov. Greg Abbott on Thursday told state police and Texas National Guard soldiers to take the unauthorized immigrants they apprehend to ports of entry rather than into state custody.
The move immediately was denounced from the left and right.
Abbott, though, defended his action. He said President Joe Biden has failed to prevent an “invasion” of a state by relaxing his predecessor’s policies in a way that has fueled a surge of unauthorized immigrants.
Still, the Texas governor stopped short of appeasing immigration hard-liners. He neither declared an “invasion” nor ordered migrants to be thrust back across the Rio Grande at points where they crossed.
“No significant changes to current policy. This is still catch and release,” tweeted a group associated with former Homeland Security official Ken Cuccinelli, who has said states actually should push migrants back into Mexico.
Jeremy McKinney, president of the American Immigration Lawyers Association, said Abbott’s order is “morally reprehensible and unquestionably illegal” and will harm asylum seekers and border communities.
The effect of the order is unclear. An Abbott spokeswoman did not return a request for comment.
“We are unable to discuss operational specifics,” said Department of Public Safety spokeswoman Ericka Miller when asked how officers would carry out the governor’s order — and if they would use force if migrants balked.
Legal scholars have called the approach legally dubious and said it will almost certainly invite lawsuits.
John Yoo, a University of California-Berkeley law professor, said Abbott may be hoping to spur the U.S. Supreme Court to reconsider what kinds of state action on immigration are permissible.
“It’s quite clever,” said Yoo, who served in the Justice Department under former President George W. Bush. “He is going to provoke a lawsuit to test the Arizona case to see if … he can overturn it.”
Yoo was referring to a 2012 Supreme Court decision in which the court significantly dialed back Arizona’s attempt to have state and local police enforce federal immigration laws. The high court has a more conservative cast, Yoo noted. Abbott has spoken of how he framed Operation Lone Star, his border security initiative, to stay within the limits justices set out a decade ago.
Under the U.S. Constitution and federal law, the federal government has the sole duty to enforce immigration and border policy. In specific instances, known as “Section 287(g) agreements,” however, it has deputized state and local law enforcement to help enforce federal immigration law.
Thursday’s move sets Abbott, a Republican, on an even more dramatic collision course with the administration of Biden, a Democrat.
“While President Biden refuses to do his job and enforce the immigration laws enacted by Congress, the state of Texas is once again stepping up and taking unprecedented action to protect Americans and secure our southern border,” Abbott said in a written statement.
“The cartels have become emboldened and enriched by President Biden’s open border policies, smuggling in record numbers of people, weapons, and deadly drugs like fentanyl.”
A White House spokesman cast doubt on Abbott’s immigration record, saying Operation Lone Star placed Guard soldiers and police officers “in dangerous situations,” while Abbott’s April truck inspections were ineffectual and hurt the economy.
In May, the last month with available data, Border Patrol encounters with immigrants on the U.S.-Mexico border soared to 222,000, or more than 7,000 daily. The record had been in March 2000, when there were about 220,000 arrests, according to historical Border Patrol data.
Immigration experts caution that the figures are inflated because of the pandemic-related health policy known as Title 42, which doesn’t provide legal consequences for migrants or asylum seekers. In May, a quarter of those caught had tried to enter at least once in the last year, Customs and Border Protection officials said.
In May, all encounters by Border Patrol and CBP staff soared to 239,000.
Abbott’s executive order directs DPS officers and Texas National Guard troops to apprehend migrants and “return those illegal immigrants to the border at a port of entry.” But the order has no details about how the policy will be enforced.
Abbott has previously said that a state declaring an invasion and taking over immigration enforcement might put state law enforcement officers at risk of being prosecuted by the U.S. Department of Justice.
For months, Cuccinelli and other officials of former President Donald Trump’s administration have pressured Abbott to declare the immigrant surge an “invasion” under a rarely invoked clause of the U.S. Constitution. In his March GOP primary, Abbott faced an opponent, former Dallas GOP state Sen. Donald Huffines, who vowed he would do just that as governor.
On Tuesday, Cuccinelli, now with the Trump-affiliated group the Center for Renewing America, appeared at a press conference in Brackettville. There, Kinney County officials made their own “invasion” declaration — a move without legal standing.
Later Tuesday, Lt. Gov. Dan Patrick signaled he supports the declaration.
“If we’re being invaded under the Constitution, I think that gives us the power to put hands on people and send them back,” Patrick said on Fox News. “Put hands on people and send them back.”
Constitutional scholars say it’s widely accepted that the federal government enforces immigration law.
In his executive order, Abbott pointed to a section of the U.S. Constitution that says states cannot engage in war unless “actually invaded, or in such imminent Danger as will not admit of delay.”
He said the federal government “has abandoned the covenant” under which the U.S. “shall protect each [State in this Union] against Invasion” and the states, in turn, ceded control of foreign and military policy, currency and tariffs to the central government.
The “invasion” language dates to an era when it could take weeks for news to travel to the national capital by boat or horse-borne messenger. If attacked, state officials then would have to act before Congress could respond, say, by declaring war.
“The notion that the states or counties could declare that the president’s failure to control the border and enforce immigration law constitutes an invasion, giving them the power to intervene, strikes me as lunacy which the courts would never uphold,” said Lackland H. Bloom Jr., a professor at Southern Methodist University’s Dedman School of Law.
Abbott, though, said Biden’s attempt to roll back Trump’s border policies created an opening for Mexican drug cartels. The cartels describe current U.S. policy “as la invitación (‘the invitation’), reflecting the perception that President Biden welcomes immigrants to make the dangerous trek across our southern border,” Abbott’s order says.
The resulting surge of migrants, weapons and illegal drugs has “forced” Texas to spend more than $4 billion of its own funds to build a border barrier and deploy military forces to “repel the illegal immigration that funds the cartels,” Abbott said.
Until Thursday, state police and Guard soldiers whom Abbott dispatched to the border as part of Operation Lone Star did not take migrants back to the border but instead arrested them on trespassing and other state charges.
Staff writer Dianne Solis in Dallas contributed to this report.
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