AUSTIN – Gov. Greg Abbott on Thursday told state police and Texas National Guard soldiers to bring unauthorized immigrants to detention at ports of entry instead of being detained by the state.
The move was immediately denounced from left and right.
Abbott, however, defended his action. He said President Joe Biden has been unable to prevent an “invasion” of a state by relaxing the policies of his predecessor in a way that has fueled an increase in unauthorized immigrants.
Still, the Texas governor stopped before appeasing the intransigent of immigration. He neither declared an “invasion” nor ordered migrants to be retreated across the Rio Grande to the points where they crossed.
“There are no significant changes in current policy. This is still to capture and release,” tweeted a group associated with former National Security official Ken Cuccinelli, who has said states should return migrants to Mexico.
Jeremy McKinney, president of the American Association of Immigration Lawyers, 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 cannot discuss the operational details,” Department of Homeland Security spokeswoman Ericka Miller said when asked how officers would comply with the governor’s order and whether they would use force if migrants resisted.
Jurists have described the approach as dubious legal and have said it will almost certainly invite to sue.
John Yoo, a law professor at the University of California-Berkeley, said Abbott could be hoping to push the U.S. Supreme Court to reconsider what types of state immigration actions are allowed.
“He’s pretty smart,” said Yoo, who served in the Justice Department under former President George W. Bush. “It will provoke a lawsuit to prove the Arizona case to see if … it can overturn it.”
Yoo was referring to a 2012 Supreme Court decision in which the court significantly overturned Arizona’s attempt to get state and local police to enforce federal immigration laws. The high court has a more conservative cast, Yoo noted. Abbott has talked about how he framed Operation Lone Star, his border security initiative, to stay within the limits set by justice a decade ago.
Under the U.S. Constitution and federal law, the federal government has a sole duty to enforce immigration and border policy. In specific cases, known as “Section 287 (g) agreements,” however, it has replaced state and local law enforcement to help enforce federal immigration law.
Thursday’s move puts Abbott, a Republican, on an even more dramatic collision path with the administration of Biden, a Democrat.
“While President Biden refuses to do his job and enforce immigration laws enacted by Congress, the state of Texas is on the rise again and taking unprecedented action to protect Americans and secure our southern border Abbott said in a written statement.
“Cartels have been emboldened and enriched by President Biden’s open border policies, smuggling a record number of people, weapons and deadly drugs such as fentanyl.”
A White House spokesman questioned Abbott’s immigration record, saying Operation Lone Star put Guard soldiers and police officers “in dangerous situations,” while truck inspections of Abbott in April were ineffective and harmed the economy.
In May, the last month with data available, Border Patrol encounters with immigrants at 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 data from the Border Patrol.
Immigration experts warn that the figures are inflated due to the pandemic-related health policy known as Title 42, which offers no legal consequences for migrants or asylum seekers. In May, a quarter of those captured had tried to enter at least once in the past year, Customs and Border Protection officials said.
In May, all Border Patrol and CBP staff meetings soared to 239,000.
Abbott’s executive order orders DPS officers and Texas National Guard troops to detain migrants and “return these illegal immigrants to the border at a port of entry.” But the order has no details on how the policy will be implemented.
Abbott has previously said that a state that declares an invasion and takes charge of immigration enforcement could put state agents at risk of being prosecuted by the U.S. Department of Justice.
For months, Cuccinelli and other officials in former President Donald Trump’s administration have pressured Abbott to declare the increase in immigrants an “invasion” under a rarely invoked clause in the U.S. Constitution. At his March Republican primary, Abbott faced an opponent, former Dallas Republican Senator Donald Huffines, who promised to do so as governor.
On Tuesday, Cuccinelli, now with Trump-affiliated group Center for Renewing America, appeared at a news conference in Brackettville. There, Kinney County officials made their own declaration of “invasion,” a move without legitimacy.
On Tuesday, Lieutenant Governor Dan Patrick indicated he supported the statement.
“If we’re being invaded by the Constitution, I think that gives us the power to get our hands on people and send them back,” Patrick told Fox News. “Put your hands on people and send them back.”
Constitutional scholars say it is 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 participate in war unless “they are actually invaded or in such imminent danger that they will not admit delay.”
He said the federal government “has abandoned the pact” under which the United States “will have to protect everyone.” [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 language of the “invasion” dates back to a time when news could take weeks to travel to the national capital by boat or courier on horseback. If attacked, state officials would have to act before Congress could respond, for example, by declaring war.
“The idea that states or counties could declare that the president’s failure to control the border and enforce immigration law is an invasion, giving them the power to intervene, seems to me crazy that the courts would never defend.” , said Lackland H. Bloom. Jr., a professor at Southern Methodist University’s Dedman School of Law.
Abbott, however, said Biden’s attempt to push back Trump’s border policies created an opening for Mexican drug cartels. The cartels describe current U.S. policy “as the invitation (‘the invitation’), which reflects President Biden’s perception of welcoming immigrants to make the perilous journey across our southern border,” he says. order of Abbott.
The resulting increase in 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 illegal immigration that it finances the cartels, ”Abbott said.
Until Thursday, state police and Guard soldiers that Abbott sent to the border as part of Operation Lone Star did not bring the migrants back to the border, but arrested them for intrusion and other state charges. .
Writer Dianne Solis in Dallas contributed to this report.