Many Americans frustrated by the steady flow of illegal immigration permitted by the Biden administration’s lax border policy refer to the influx as an invasion — and a growing number of state-level officials are embracing the same rhetoric, in part because the U.S. Constitution gives states additional authority to act in response to a declared invasion.
Texas has taken the lead with this strategy, using the invasion argument to, among other things, install a floating barrier in the Rio Grande.
I officially declared an invasion at our border because of Biden's policies.
We deployed the Texas National Guard, DPS & local law enforcement.
We are building a border wall, razor wire & marine barriers.
We are also repelling migrants.
More: https://t.co/dEivr1lL2n pic.twitter.com/hzCl6ouTVJ
— Greg Abbott (@GregAbbott_TX) September 20, 2023
Such declarations have not gone unchallenged at the federal level, however, and multiple courts have weighed in disapprovingly. Judge David Alan Ezra issued a statement rejecting the claim based on his belief that America’s founders would not have interpreted unchecked illegal immigration as the type of invasion referenced in the Constitution.
“Texas’ new interpretation of its power to protect itself against alleged invasions goes far beyond the original and natural meaning of ‘invasion’ and incurably exceeds the power granted to the states by our Founding Fathers,” he claimed.
Of course, the matter has not been settled, with the 5th U.S. Circuit Court of Appeals yet to provide a full hearing on the issue. Meanwhile, public figures who say the situation clearly rises to the level of an invasion continue making their case in the court of public opinion.
Former Virginia Attorney General Ken Cuccinelli, for example, has been a prominent advocate for arguments like those made by Republican Texas Gov. Greg Abbott and believes that his side of the debate will ultimately emerge victorious.
“I trust that when more open-minded judges who are more respectful of the actual words of the Constitution get this case, you will see more respect from the courts for Texas’ continuing right to defend itself against the invasion taking place across the Mexican border,” he said.
Nevertheless, judges like Ezra have interpreted the constitutional clause at the center of this issue as anachronistic considering society’s subsequent advancements.
“The United States now has a significant military presence in Texas, and federal military forces could be at the border within a matter of hours,” he argued. “In addition the Texas National Guard is on site and could be activated by the president in the case of a national emergency. And Border Patrol is already at the border daily.”
Cuccinelli offered a different historical viewpoint, explaining: “It took until the latter half of the 20th century for the United States to assume full-time, primary responsibility for policing the Southern border. Where does Judge Ezra think Texas’ authority for all those years came from? Instead of a straightforward answer, Judge Ezra pretends all of that history does not exist.”
