AP News reports that former Trump officials Ken Cuccinelli and Tom Homan are allegedly pressuring Texas Governor Greg Abbott to declare an invasion at the southern border to limit the flow of unlawful migration.
Unlawful crossings at the U.S.-Mexico border have grown after a brief slowdown during the COVID-19 pandemic.
One policy mitigating the number of people who enter at border checkpoints is Title 42 public health restrictions. Title 42Â limited the number of potential migrants during the pandemic by allowing them to be turned away on the basis of COVID-19 protections.
The Biden administration has announced that it intends to eliminate Title 42 restrictions in May.
Border Patrol officials say they are planning for as many as 18,000 unlawful migrant encounters per day once the health policy ends. In comparison, about 7,100 unlawful migrant encounters occurred at the southern U.S. border per day in mid-March.
Because of the imminent expiration of Title 42, the concern is growing among governor’s offices along the Southwest Border. Some former Trump officials have begun urging Governor Abbott to invoke the “invasion clause” of the U.S. Constitution under the “states self-defense clause.”
Leading the effort is the Center for Renewing America, a conservative policy think tank led by former Trump administration officials, including Ken Cuccinelli, a former Homeland Security official.
Cuccinelli told the AP that states are entitled to defend themselves from immediate danger or invasion using the clause in the constitution.
The former Homeland Security official said if the clause is invoked, he envisions that enforcement would look similar to the enforcement of Title 42 in practice, which bypassed the federal obligation to provide asylum under American law and international treaties.
Cuccinelli said he has not spoken with Abbott, but claimed that the governor’s current border mission, known as Operation Lone Star, has had little effect on the number of people crossing the border.
“Until you are actually returning people to Mexico, what you are doing will have no effect,” Cuccinelli said.
Tom Homan, chief of ICE under Trump, spoke at a border security conference in San Antonio last week. He stated he met with Abbott to discuss potentially invoking the “invasion clause” in response to the potential influx of unlawful migrants.
“We’ve had discussions with his attorneys in his office, ‘Is there a way to use this clause within the constitution where it talks about invasion?'” Homan said during the Border Security Expo.
Homan said the meeting with Abbott took place three months ago, and he characterized the governor’s response as “non-committal but willing to listen.”
The former Trump officials argue that if Abbott were to declare an “invasion” along the U.S-Mexico border, it would give Texas state troopers and National Guard members sweeping authority to turn back unlawful migrants, essentially usurping a federal responsibility.
The legal response to the credibility of the former Trump officials’ arguments has been ambiguous.
Arizona Attorney General Mark Brnovich penned a legal opinion in February arguing that his state is within its rights to declare an invasion.
Arizona Governor Doug Ducey has yet to respond or make a public statement about the subject.
Emily Berman, a Constitutional Law professor at the University of Houston, believes the theory of using the “invasion clause” to stem unlawful migration is flawed. Berman noted that the clause is tucked under a broader constitutional clause stating that the U.S. government must defend states from invasion.
She added that the “state self-defense clause” also says states cannot engage in warlike actions or foreign policy unless invaded.
Berman also noted that the courts ruled in the 1990s that states did not have jurisdiction to decide what constitutes an “invasion,” but that she believes one can only be carried out by another governmental entity.
Providing an example, Berman said the invasion of Ukraine by Russia could qualify as an invasion because it constitutes an outside government entering another country’s boundaries with military force.
“Just because the state says that it is an invasion, that doesn’t necessarily make it so; it is not clear to me what additional legal authority that conveys on them,” Berman said, adding that state officials can only enforce state laws.
U.S. Representative Henry Cuellar (D-TX), whose district includes a portion of the Texas border, has criticized the Biden administration’s border security policies and the elimination of Title 42. However, he does not support states trying to use the “invasion clause” to let them “do whatever they want.”
“I think it should be more of a partnership instead of saying, ‘Federal government, we don’t think you’re doing enough, and why don’t we go ahead and do our own border security?” he said.
