West News Wire: By taking advantage of what it believes to be a legal gap around the definition of “invasion,” Texas is challenging federal control over policy on the US-Mexico border; however, immigrant rights organisations view this as dangerously inflaming anxieties with racist language.
Since the US Supreme Court determined that the US federal government, not individual states, should be in charge of immigration policy in the landmark United States v. Arizona case in 2012, this has been the situation for a long time.
However, right-wing Republican Governor Greg Abbott referred to border crossing migrants as a public enemy in November 2022, using the “invasion” articles in the US and Texas constitutions to assert his authority to enforce 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 attempting to take Texas border management into his own hands, as indicated by the state’s recent announcement of a new “border force” that, if approved by the state legislature, may authorise its agents to “arrest, apprehend or detain persons crossing the Texas-Mexico border unlawfully”. And the possibility of that happening is great given the conservative majority in both the state house and senate of Texas.
Abbott has made it clear how he interprets the “invasion clauses”. Abbott stated: “I invoked the Invasion Clauses of the US and Texas Constitutions to fully authorise Texas to take unprecedented measures to defend our state against an invasion.” at the time of launching his border force.
“To maintain our state, I’m employing that constitutional authority, as well as legal permissions and Executive Orders.
However, Barbara Hines, a law professor at the University of Texas and the creator of the immigration clinic there, claims that the legal terminology Abbot is referencing is not that straightforward.
The state’s reasoning for passing its own immigration rules was deemed “unprecedented and extreme” by Hines.
“A federal concern is federal immigration legislation. According to Hines, it is not based on the Texas Constitution.
The Texas Constitution’s Article 4 provides that “[the governor] shall be Commander-in-Chief of the State’s military forces, except when such forces are actually called into service of the United States.” He will have the authority to mobilise the militia to enforce state laws, quell uprisings, and fend off invaders.
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 experts argue that the supremacy clause in the US constitution negates right-wing claims regarding the invasion clause in the Texas constitution. This declares 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.
However, the word “invasion” appears twice in the US constitution: first in article one, section 10, and again in article four, section 4. Abbott and several other right-wing campaigners now have reason to believe that a conservative supreme court will accept their arguments.
First, the US constitution expressly restricts states’ ability to maintain troops, such as Operation Lone Star’s border force, unless they are 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.”
Civil rights organisations and others have already questioned Abbott’s plans as being unlawful, including his proposed border force and the current operation Operation Lone Star. Civil rights advocacy organisations have filed legal challenges against them, and the US Department of Justice has launched an inquiry.
It’s likely that the US will have to reconsider the issue of who controls the border if a lawsuit like this against Texas materialises and progresses through the courts, particularly all the way up to the US supreme court.
According to others, Texas politicians who support state sovereignty of the border desire just that. This is especially true given that the present supreme court is predominated by judges who are ardently conservative.
