One of the more insidious elements of Texas’ attempt to annex immigration enforcement away from the federal government comes down to its justification.
Proponents, like the author of the hard-line HB20, state Rep. Matt Schaefer (R), say that Texas faces an “invasion” from Mexico, specifying that drug cartels trafficking fentanyl constitute a threat to the state of Texas.
It’s not only a way to inflate the sense of crisis and potentially set the stage for a sea change in national immigration policy; it could, far-right lawmakers theorize, allow the state to seize border enforcement powers from the federal government.
During an invasion, the Constitution says, states have a right to defend themselves. Declaring an invasion under Article 1, Section 10 of the U.S. Constitution, far-right legal theorists argue, could allow state law enforcement to assume certain powers that have been, until now, the province of the federal government, including letting state law enforcement deport undocumented migrants to Mexico.
That far-fetched legal reasoning has struggled in court when other states have attempted to make the argument in recent decades. But with an increasingly right-wing judiciary, Texas lawmakers and Attorney General Ken Paxton (R) have said that they believe they would face better odds.
Gov. Greg Abbott (R) set the current bout of border fever in motion by launching Operation Lone Star, an effort that has encompassed a border blockade and an extremely costly, ongoing deployment of the state’s National Guard. But Abbott has stopped short of declaring an invasion, opening him up to criticism from those on the right who want him to use state law enforcement to repel and deport undocumented migrants.
“A lot of his supporters who are more conservative have been pushing him to declare this an invasion, and he’s done everything to stop short of saying that we’re facing an actual invasion,” Chelsie Kramer, a Texas organizer with the American Immigration Council, told TPM last month.
Over the past year, Abbott has faced criticism from the far, far-right for doing everything to present the border as a cartel-infested war zone and launch performative displays of force but for not going all the way.
Trump Administration Homeland Security Secretary Ken Cuccinelli has criticized Abbott over the lack of an invasion declaration, while Fox News host Tucker Carlson confronted Abbott in December and asked why he hadn’t used the state National Guard to “block the border and save the country.” Texas Scorecard, an influential right-wing non-profit in the state, boosted the message, saying that Abbott was “failing” to “defend Texas from the ongoing invasion.”
“I think it would be a mistake,” Carlos Cascos, a former Texas Secretary of State who served during Abbott’s first two years as governor, told TPM when asked about declaring an invasion. “Because then, now what? What are you going to do?”
Abbott and his office have declined to weigh in specifically on HB20. That bill, in its current version, instead of relying on a finding from the governor that the states faces an invasion, would create a legislative finding of the same. It would establish a state-run Border Patrol Unit, empowered to deputize and train citizens, and to “repel” and “return” undocumented migrants seen crossing the border.
Abbott’s office has not returned TPM’s repeated requests for comment about the issue.
“The non taking a position — silence is loud,” Cascos added. “At the end of the day, I think his intentions are good, but you know what they say about intentions.”
Under Operation Lone Star, Abbott’s border protection scheme, the state has spent around $4.5 billion on state law enforcement and national guard deployments along the southern border. That’s included mass arrests of undocumented immigrants on trespassing charges, overloading rural Texas court systems that are left to process the cases.
In July 2022, Abbott issued an executive order which cited the Constitution’s invasion clause to allow state law enforcement to transport undocumented immigrants to ports of entry along the U.S.-Mexico border. But that’s opened Abbott up to criticism that he is, in effect, a RINO implementing a “catch-and-release” policy, as Cuccinelli said last year.
Though Abbott has remained silent on HB20, the bill’s supporters have downplayed the impact that the legislation would have on immigration enforcement.
Instead, Rep. Schaefer, the bill’s author, has portrayed the measure as a way of fighting the fentanyl epidemic.
To Jon Taylor, chair of the political science and geography department at UT-San Antonio, the messaging reflects an attempt to escape the true content of the bill.
“They’re trying as well as they can to dance around it to avoid angering what is appearing to be burgeoning Latino support for Republicans, particularly in South Texas along the border,” Taylor told TPM. “The Dems have just been merciless in talking about it being nothing but racism, harassment, profiling, and anti-immigrant.”
Texas Democrats dubbed the bill last month a “vigilante death squads policy.”
Texas officials like Paxton have said that lawmakers should declare an invasion in order to “test” a 2012 Supreme Court decision, U.S. v. Arizona, which affirmed that immigration enforcement powers reside with the federal government alone. HB20, which would do that, is likely to pass in some form, with the speaker of the state house calling its passage a “priority.”
And while Abbott has remained silent on the matter, few people TPM spoke with in Texas doubted that he supported the bill. Taylor, the UT-San Antonio professor, suggested that it was a reflection of him understanding the limits of his powers — and trying to find a way to move beyond them.
“He can say all he wants about it being an invasion,” Taylor said. “But he knows that that’s a federal responsibility.