Texas Governor Invokes the Invasion Clause at Southwest Border

Desperate times call for desperate measures – and things are mighty desperate at the Rio Grande

By Andrew R. Arthur on November 17, 2022

Texas Gov. Greg Abbott (R) invoked the invasion clause of the U.S. and Texas constitutions this week, providing additional power to state authorities to protect the state’s 1,254 mile border with Mexico against drug and migrant entries. Desperate times call for desperate measures, and things are desperate at the Southwest border in Texas.

“Biden’s Border Fiasco”. Joe Biden inherited what Rodney Scott, his first Border Patrol chief, described last September as “arguably the most effective border security in” U.S. history, but he quickly allowed it to “disintegrate” as “inexperienced political appointees” ignored “common sense border security recommendations from experienced career professionals.”

Consequently, Border Patrol apprehensions at the Southwest border have soared since Biden took office.

While apprehension totals from FY 2020 are skewed because of Covid-19 shutdowns that restricted even illicit travel, agents apprehended just over 851,500 illegal entrants at the U.S.-Mexico line in FY 2019, a surge that was so historically bad that it prompted then-DHS Secretary Kirstjen Nielsen to declare a “border emergency”.

Border Patrol apprehended nearly twice as many illegal migrants – just short of 1.7 million – in FY 2021 than they did in FY 2019, and the FY 2022 apprehension total at the Southwest border (more than 2.2 million) beat FY 2019’s total by 159 percent.

Those shocking apprehension numbers don’t even include the “got aways” –entrants who crossed the Southwest border illegally and evaded apprehension. There were more than 389,000 such migrants in FY 2021, 599,000 in FY 2022, and “roughly 64,000” last month alone – 1.05 million-plus in total.

It’s no wonder that even the left-leaning editorial board at Bloomberg Opinion described the situation as “Biden’s Border Fiasco” in calling for leadership on the issue in August.

Effects in Texas. While there’s plenty of pain to go around at the Southwest border under Biden, Texas has borne the brunt of it. There are five Border Patrol sectors along the Rio Grande in the Lone Star State (the Rio Grande Valley, Laredo, Del Rio, Big Bend, and El Paso sectors), and agents in those sectors made more than 1.395 million apprehensions in FY 2022.

What’s worse, as DHS under the Biden administration has released more than a million apprehended illegal entrants from custody (in violation of congressional mandates), many of those migrants have found themselves stranded in small Texas towns like Uvalde and Carrizo Springs, miles from the border.

In order to take the pressure off those towns, Abbott started busing migrants out of the state, first to Washington, D.C., and then to New York City, Chicago, and now Philadelphia. Mayors of those “sanctuary” cities have cried foul, but Abbott was reelected on November 8 with nearly 55 percent of the vote, so his busing policy is plainly well received back home.

“Operation Lone Star”. That busing program is not the first effort that Abbott has taken to address Texas’ border crisis, however.

In March 2021, he launched “Operation Lone Star”. As a state press release explains: “The Operation integrates DPS [Texas Department of Public Safety] with the Texas National Guard and deploys air, ground, marine, and tactical border security assets to high threat areas to deny Mexican Cartels and other smugglers the ability to move drugs and people into Texas.”

Abbott pulled no punches in explaining why he needed to take the extraordinary step of protecting the border – which is supposed to be DHS’s job, after all – stating: “The crisis at our southern border continues to escalate because of Biden Administration policies that refuse to secure the border and invite illegal immigration”.

I was embedded with DPS officers who were part of Lone Star during a trip to Del Rio in August 2021, and those officers have a tough job. Many are hundreds of miles away from their homes for weeks at a time, playing a cat-and-mouse game with smugglers on the highways, along the border, and in the brush.

If DPS weren’t there, however, there would be little evidence of a border at all. Border Patrol agents are so tied up in transporting, processing, caring for, and (often) releasing migrants that they are unable to perform their core duty – actually securing the border. Border Patrol vehicles used to be ubiquitous on the winding border roads and along the river. Not anymore.

“Invasion”. All of which brings me to Tuesday, when Abbott tweeted the following:


He expounded on this action in November 16 letter to President Biden, in which he stated:

The U.S. Constitution won ratification by promising the States, in Article IV, § 4, that the federal government “shall protect each of them against Invasion.” By refusing to enforce the immigration laws enacted by Congress, including 8 U.S.C. § 1325(a)(1)’s criminal prohibition against aliens entering the United States between authorized ports of entry, your Administration has made clear that it will not honor that guarantee. The federal government’s failure has forced me to invoke Article I, § 10, Clause 3 of the U.S. Constitution, thereby enabling the State of Texas to protect its own territory against invasion by the Mexican drug cartels.

Abbott has not issued a formal “invasion” declaration yet, but the governor’s intentions are set out clearly in that tweet: To authorize National Guard personnel to deter illegal entrants; to direct DPS officers to turn illegal migrants over to DHS at the ports of entry for return; to continue state border wall construction; and to use Texas’ economic might (the state is the ninth largest economy in the world and a key entry point for commerce from the south) to broker deals to slow the migrant flow.

Some may argue that the governor has not taken the step of physically removing illegal entrants from the United States, but states don’t have that authority – invasion invocation or not. The best DPS can do is hand migrants over at the ports for DHS to remove them.

That said, using the Texas National Guard and DPS gun boats to deter illegal entrants is a significant step, particularly given that the Biden administration has attempted (unsuccessfully) to prosecute Border Patrol agents in Del Rio for the non-crime of preventing aliens from entering illegally (the "whipping" incident).

Abbott offered Biden a way out, however, telling the president in that November 16 letter: “You must reinstate the policies that you eliminated, or craft and implement new policies, in order to fulfill your constitutional duty to enforce federal immigration laws and protect the States against invasion.”

Among the specific steps Abbott recommends Biden take are prosecuting aliens for illegal entry, complying with the congressional detention mandates for illegal migrants, ceasing en masse paroles of illegal entrants from DHS custody, resuming border barrier construction, and reinstating the Migrant Protection Protocols, better known as “Remain in Mexico”.

Abbott’s right on all these points, and correctly directs his blame at the White House.

Prosecutions for illegal entry have plummeted since Biden took office, while one of the president’s first actions was to “pause” barrier construction at the Southwest border. Federal courts have already complained about the administration’s failure to comply with congressional restrictions on its limited parole authority, and Biden has been fighting states’ efforts in the courts to force DHS to reimplement the successful MPP program since April 2021.

Through each of these actions, Biden has contributed to the humanitarian and national-security disaster at the Southwest border. The criminality, carnage, and deaths there will simply multiply now that a federal judge has vacated CDC orders directing the expulsion of illegal entrants, which were issued under Title 42 of the U.S. Code in response to the Covid-19 pandemic.

DHS warns that up to 18,000 aliens will enter the United States per day at the Southwest border post-Title 42 – the only quasi-border policy of the Trump administration that Biden opted to keep (until he didn’t and had to be forced to). That’s more than 2.5 times as many as entered in October, and 18 times as many as Obama DHS Secretary Jeh Johnson has stated Border Patrol has the capacity to deal with.

Again, Abbott has not issued a formal invasion proclamation, so I’m not going to jump the gun on the full implications of such a step – including the possibility that the Biden administration could sue to stop it, which would likely create an even wider rift between the state and federal governments.

Desperate times call for desperate measures, and things are beyond desperate along the Rio Grande. You don’t have to trust me, however – trust the governor of the state that’s dealing with the fallout of “Biden’s Border Fiasco”, and look at the actions he has already been forced to take to keep Texans and all Americans safe.