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Gov. Greg Abbott on Thursday cleared state authorities to return migrants they apprehend to the border, setting up a potential clash with the federal government over the authority to enforce immigration law.
Immigration law enforcement is a federal responsibility. Abbott appears to be testing the limits of state authority by empowering state law enforcement and National Guard troops under state deployment to bring migrants to the ports of entry — stopping short of using state resources to expel migrants from the country, as immigration hawks have increasingly called for in recent months.
It was not immediately clear how state law enforcement would determine which migrants should be transported.
Despite the state’s allocation of $4 billion for border security and the deployment of thousands of National Guard troops and state police to the border, Abbott has faced growing pressure from within his party to assert a stronger state role and invoke “invasion” powers under the U.S. Constitution. Such a declaration, some Texas Republicans contend, would give states solid legal ground to invoke war powers to allow the state’s National Guard to deport migrants. The idea has been widely derided by legal experts as a political ploy, and Abbott earlier this year expressed concern that it could expose state law enforcement to federal prosecution.
But on Thursday, Abbott stopped just shy of fulfilling those requests.
The executive order allows the Texas National Guard and Texas Department of Public Safety to apprehend “immigrants who cross the border between ports of entry or commit other violations of federal law, and to return” them to ports of entry. It is unclear from the executive order what state authorities would do with the migrants once they returned them to the ports of entry, which are manned by federal immigration authorities.
Abbott’s office did not respond to questions seeking clarification.
“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 statement.
Immigration experts said the order raises a number of legal questions.
Under Operation Lone Star, Abbott’s highly touted mission to secure the border, the governor has authorized troopers and National Guard service members to arrest migrants for state crimes, like trespassing. That has allowed the state to arrest thousands of migrants and hold them in the state's criminal justice system.
But if state authorities are authorized to return those migrants to the border after they are arrested, the order raises a question of whether those authorities are attempting to enforce immigration law, said Doris Meissner, a senior fellow at the Washington-based Migration Policy Institute.
“In terms of transporting, that’s exactly the question I’d have. Where would be the authority [come from] for state officials to transport people they suspect of being in violation of immigration law and having just recently crossed without arresting them for some reason?” said Meissner, who ran the U.S. Immigration and Nationalization Service from 1993 to 2000. “Were they to do that, I think that raises pretty basic civil rights violation questions.”
Aaron Reichlin-Melnik, policy director for the American Immigration Council, said Abbott's order deputizes state authorities to arrest migrants for federal immigration violations, which the U.S. Supreme Court has said is a federal responsibility. State authorities can only enforce immigration law if they've been permitted by the federal government.
“Gov. Abbott is inviting a lawsuit from the Biden administration just as the Arizona legislature did over a decade ago ... which led to the Supreme Court laying out that the federal government alone has authority to do immigration enforcement,” he said.
Reichlin-Melnik said the order could also expose troopers and National Guard service members to a lawsuit from migrants. He noted that as recently as April, Abbott had expressed concern that issuing an “invasion” declaration could expose state authorities to federal prosecution.
“Any National Guard troops or troopers deputized to do this could theoretically face civil liability from the immigrant if the person decided to sue,” he said. “It is a really risky gambit and one whose most likely victims would be the law enforcement officers he orders to carry out the duty and not him.”
Abbott’s executive order does not explicitly declare an "invasion" but makes reference to the part of the U.S. Constitution its proponents have cited. The executive order says Biden’s “failure to faithfully execute the immigration laws enacted by Congress confirms” he has abandoned his constitutional duty to protect the state against an “invasion.”
On Tuesday, a group of county leaders in South Texas called on Abbott to declare an “invasion” and begin putting state resources toward expelling migrants, saying the crossing of migrants through their regions was causing property damage and an increase in crime. The same day, Lt. Gov. Dan Patrick echoed such calls.
“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.
Abbott’s executive order was not enough to satisfy one of the loudest advocates for him to declare an “invasion,” the Center for Renewing America. Two officials with the think tank, Russ Vought and Ken Cuccinelli, issued a statement noting that Abbott “does not appear to formally declare an invasion not direct [state law enforcement] to remove illegals across the border directly to Mexico.”
“That is critical,” they said. “Otherwise this is still catch and release.”
The call to invoke the U.S. and Texas constitutions to declare an invasion as a means to crack down on immigration is based on a fringe legal theory that gained mainstream attention earlier this year when Arizona Attorney General Mark Brnovich said that state’s governor, Doug Ducey, would be on solid legal ground to invoke war powers to send the state’s National Guard to its border to stop an “invasion” of drug cartels and criminal gangs. Brnovich is running for U.S. Senate as a Republican. Ducey, also a Republican, has resisted calls to declare an invasion.
Immigration rights groups have repeatedly condemned referring to migrants as an “invasion,” noting the rhetoric is dangerous to Latino communities and was cited by the El Paso shooter who killed 23 people in 2019. Law enforcement said the gunman left a message saying the attack was “in response to the Hispanic invasion of Texas."
Reichlin-Melnick criticized Abbott’s order as an “election year stunt” to appease immigration hawks in his party.
“Greg Abbott doesn’t technically declare an invasion in this document but he flirts around it,” he said. “This has been something Gov. Abbott has been pressured to do by the far right for months now, trying to invoke a nonexistent authority in the Constitution for states to supposedly protect themselves from an invasion.”
State Sen. César Blanco, D-El Paso, said in a statement the “executive order is not an effective solution.”
“Our borders are not facing an invasion,” the statement said. “We are facing a humanitarian crisis that demands a humanitarian response. This policy is unconstitutional and the rhetoric is dangerous.”
The American Civil Liberties Union of Texas said in a statement the order was “vicious and unlawful” and “recklessly fans the flames of hate in our state.”
“The governor is once again playing politics rather than addressing the real needs of Texans,” the statement from staff attorney Kate Huddleston said. “The Biden administration should act swiftly to condemn this unlawful order and ensure that federal agencies play no role in it.”
Abbott’s executive order comes just a week after Kinney County Sheriff Brad Coe announced his office was taking matters into its own hands by transporting migrants to the border. He said his office took four migrants into custody after they had been involved in a car wreck. He tried to turn them over to immigration officials, but they would not take them because they said the migrants needed to be medically cleared.
Coe said he did not have enough deputies to wait with the migrants for hours at the hospital so he made a “command decision” to offer them a ride back to the U.S. port of entry in Eagle Pass.
On Thursday, Brent Smith, a Kinney County attorney, said Abbott’s actions fell short.
“Without declaring an invasion and invoking the self defense clause under Article 1, the lawlessness and violence occurring on our border with Mexico will continue to be allowed by DHS and their unconstitutional immigration policies,” Smith said in a statement.
Disclosure: The ACLU of Texas has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.