Invasion by Texas counties alters the national dialogue on the border crisis

In April of three years ago, a small county on the border bravely stood up to protect its population from the surge of crime associated with the border.

In a swift response to the escalating border crisis, Kinney County took the lead on April 21, 2021, by issuing a disaster declaration. This was soon followed by Atascosa, Goliad, and La Salle counties, all recognizing the urgent need to address the situation.

Texas Governor Greg Abbott took action to support counties affected by the situation by issuing a disaster declaration on May 31, 2021. Additionally, on March 6, 2021, he initiated Operation Lone Star, a mission aimed at enhancing border security in Texas.

During a meeting in Del Rio, Texas on June 11, 2021, when Abbott initially announced his plans to construct a border wall in Texas, Kinney County Attorney Brent Smith proposed that Abbott utilize his constitutional authority to declare an invasion, referencing Article 1, Section 10, Clause 3 of the U.S. Constitution.

No one was using or discussing the word “invasion” at that time.

Residents and lawmakers in Texas have been urging Texas Attorney General Ken Paxton to provide a legal opinion on the concept of “invasion” over the past year. Former Arizona Attorney General Mark Brnovich, the only state attorney general to have done so, issued his opinion in February 2022. Brnovich referred to former Supreme Court Justice Antonin Scalia’s views to support the argument for states’ right to self-defense. Almost two years later, Brnovich reiterated his stance before Congress. Additionally, the Center for Renewing America has published a paper that explains the constitutional obligation of the federal government to protect states against invasion.

In 2022, as the election year unfolded, there were numerous calls for Paxton and Abbott to provide an invasion opinion and issue a formal invasion declaration. However, these calls remained unanswered. It was on July 5, 2022, that Kinney, Goliad, and Terrell counties made history by being the first counties ever to declare an invasion. Their justification was based on the U.S. and Texas constitutions. Despite this, by August 2022, Paxton’s office maintained its stance of not issuing an opinion on invasion, citing federal code as the reason.

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After the November 2022 election, a former active-duty Navy JAG and national security law expert renewed the call for Texas to declare an invasion. Shortly after, Abbott wrote a letter to county judges, referring to an executive order he had issued in June 2022. In the letter, he cited the Texas Disaster Act of 1975 and the U.S. Constitution as his authority to direct the Texas National Guard and Texas Department of Public Safety to apprehend illegal foreign nationals who cross the border between ports of entry or commit other violations of federal law, and to return them to the border at a port of entry.

The Texas legislature has allocated more than $11.6 billion for border security efforts over a span of four years, despite not passing an invasion resolution. In line with this, they passed SB 4 last year to enforce the provisions of Governor Abbott’s order, which he had signed into law. Although it was scheduled to take effect this month, it is currently being reviewed by the U.S. Supreme Court due to legal challenges.

In the last three years, Governor Abbott has actively engaged with President Joe Biden through written correspondence and press conferences alongside Republican governors. Notably, 25 Republican officials have recently pledged their support for Texas’ border security operations. Earlier this year, Abbott emphasized Texas’ constitutional right to self-defense and expressed his concerns to President Biden, highlighting a perceived breach of the states’ agreement.

Florida Governor Ron DeSantis, one of the first to dispatch troops, law enforcement, and other personnel to Texas, emphasized the importance of including state protection in the U.S. Constitution. He stated that if this safeguard was not included, the Constitution would not have been ratified.

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In a recent op-ed published by the New York Post, Abbott reaffirmed Texas’ constitutional right to self-defense. He echoed the arguments previously presented by Brnovich in 2022.

After Smith initially raised concerns, it has been almost three years, and now a total of 60 counties in Texas have declared a state of disaster. Additionally, 55 counties have taken it a step further by passing resolutions against the invasion, with some counties doing both.

According to military experts, the ongoing issue is not just about illegal immigration, but rather a form of migrant warfare driven by cartels. Smith and other experts believe that the safety and security of a state’s border is at risk, as transnational criminal organizations have gained control of the border under the Biden administration. This poses an imminent danger to Americans. In such cases, when the federal government fails to enforce federal law, the U.S. Constitution ensures that states are guaranteed protection.

As a lifelong resident of a small border community, Smith and his fellow neighbors have been firsthand witnesses to the continuous influx of illegal border crossings throughout the years. However, they firmly believe that the surge in criminal activities intensified following Biden’s decision to halt the enforcement of federal immigration laws on his first day in office. Since then, an estimated 11 million people have unlawfully entered the United States, with two million managing to evade capture. Texas, being the most heavily impacted by these illegal border crossings, experienced a staggering record of 1.9 million cases during fiscal 2023, as exclusively reported by The Center Square.

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According to The Center Square, Smith, who assumed the position of county attorney in 2020, emphasized the significance of taking action. He stated, “I witnessed firsthand the devastation caused to the safety, security, and property of people who are like family to me. I couldn’t stand by and do nothing. As Texans, we have a solemn responsibility to protect the freedoms that have been passed down to us by those who made the ultimate sacrifice.”

“It became evident from the very beginning that the border crisis was a deliberate act and would necessitate a constitutional solution. The fundamental principle of self-preservation is the bedrock of our Constitution and forms the basis of everything we hold dear as Americans. The State’s provision for self-defense, as outlined in Article 1, §10, Clause 3, is derived from the inherent right of self-preservation. This empowers each individual state to take action in safeguarding the lives, freedom, and property of its people. This right is inherent to the state of Texas, meaning it cannot be eroded or hindered by any court ruling.”

According to Smith, the focus should not be on immigration, human rights, racism, or secession. Instead, the main issue at hand is the constitutional power of states to safeguard their citizens.

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