Gov. Greg Abbott and the U.S. Department of Justice could be heading to court over whether Texas has the legal right to secure its own border with Mexico.
The Department of Justice (DOJ) sent Abbott a notice informing the governor that it would be filing a lawsuit against the state, claiming that Abbott’s efforts to deter unlawful entry into Texas via the Rio Grande were illegal.
“We write to inform you … that the United States intends to file legal action in relation to the State of Texas’s unlawful construction of a floating barrier in the Rio Grande River,” the letter reads. “The State of Texas’s actions violate federal law, raise humanitarian concerns, present serious risks to public safety and the environment, and may interfere with the federal government’s ability to carry out its official duties.”
As previously reported by The Dallas Express, Abbott directed the installation of buoys in the Rio Grande to deter unlawful mass migration into Texas.
“The floating barrier at issue here is a structure that obstructs the navigable capacity of the Rio Grande River, which is a navigable water of the United States within the meaning of the Rivers and Harbors Act,” the DOJ claimed in its letter to Abbott.
In response to the legal threat, Abbott tweeted, “Texas has the sovereign authority to defend our border, under the U.S. Constitution and the Texas Constitution. … The tragic humanitarian crisis on the border was created because of Biden’s refusal to secure the border. His open border policies encourage migrants to risk their lives crossing illegally through the Rio Grande, instead of safely and legally over a bridge.”
“Texas is stepping up to address this crisis. We will continue to deploy every strategy to protect Texans and Americans — and the migrants risking their lives,” he continued. “We will see you in court, Mr. President.”
Former presidential candidate Robert “Beto” O’Rourke subsequently criticized Abbott’s stance on border security.
“‘Defend’ the border against babies and pregnant mothers? Your own troopers are begging you to show an ounce of humanity,” O’Rourke claimed on Twitter. “Do you have any?”
Despite media reports that Texas Department of Public Safety (DPS) troopers received orders to push women and children back into the Rio Grande, internal documents released by DPS indicate that troopers were instructed to offer medical aid and assistance if necessary, as reported by The Dallas Express.
Others disagreed with Abbott’s contention on legal grounds.
Aaron Reichlin-Melnick, policy director for the American Immigration Council, asserted, “The US Constitution does not give states the authority to carry out immigration enforcement at the border. Period. Nothing in the Constitution says anything like that, which is probably why the Biden administration has ignored any letters claiming otherwise.”
Still, the 10th Amendment leaves any right not given explicitly to the federal government to the states, noting, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Congress is authorized “[t]o establish an uniform Rule of Naturalization” in Article I, Section 8 of the U.S. Constitution, but no clause in the document openly delegates border security to federal authorities or forbids the states from maintaining the integrity of their own jurisdictions.
Additionally, some pro-border security advocates have argued that Article IV, Section 4 gives states the power to declare an invasion. Such a declaration would require the federal government to step in.
The Constitution reads, “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion.”
“The authority for states to secure the border does not rest on federal immigration law, but the Constitution’s war-making authorities that states retain in certain circumstances,” the Center for Renewing American claimed. “The guarantee against invasion is unconditional and fundamental, extending to all forms of invasion.”
At least 40 Texas counties have issued invasion declarations, calling on Abbott to declare the mass unlawful entry of migrants into the state an invasion, as previously reported by The Dallas Express.