Last week, Texas Governor Greg Abbott issued an executive order that directs the Texas National Guard and state police officers to apprehend undocumented individuals and return them to ports of entry along the border. In other words, the order stops just short of authorizing Texas Guardsmen and police to carry out deportations. This is not the first time that Abbott has sought to take border security and immigration enforcement—both exclusively federal prerogatives—into his own hands. But this is the most brazen and expansive attempt yet. Moreover, by referencing an obscure constitutional provision applicable in times of “invasion,” Abbott’s order appears to be invoking war powers as the basis for rounding up migrants and asylum-seekers. This approach is flagrantly unlawful, and the Biden administration can and should shut it down.
Some background: Since the start of the Biden administration, a record number of migrants and asylum-seekers have sought to enter the United States through its southern border. In May alone, U.S. Customs and Border Protection made nearly 240,000 arrests of undocumented individuals between ports of entry. (The 240,000 figure includes repeat encounters with individuals who had previously attempted to cross the border and been turned away as a COVID safety precaution under the government’s “Title 42 Order.” Government officials acknowledge that the Title 42 Order “has led to extraordinarily high recidivism rates” and “actually inflated  numbers at the border.”) As the Department of Homeland Security has responded to this migration and tried to avoid a humanitarian crisis, Texas officials have pursued their own remedies.
In March 2021, shortly after President Biden took office, Abbott announced Operation Lone Star. That initiative has resulted in more than 10,000 Texas National Guardsmen and roughly 1,000 Texas state police officers being sent to the border. Relying on state emergency powers, Abbott initially directed part of these forces to arrest undocumented individuals for “trespassing” on private properties adjoining the border, and to deliver them to local Texas courts for prosecution.
By January 2022, a Texas court had ruled that trespass arrests under Operation Lone Star, an obvious pretext for conducting immigration enforcement, violate established law. The Supreme Court has long held that creating and enforcing immigration policy is “unquestionably” and “exclusively” a federal power. And Congress has prohibited states from performing immigration enforcement except at the direction of the U.S. Attorney General or with the consent of the Immigration and Naturalization Service.
Facing pushback from the courts, Abbott went back to the drawing board. In April 2022, he and Texas Attorney General Ken Paxton began floating the idea of invoking a little-known clause in Article I, Section 10, of the U.S. Constitution that allows states to “engage in War” when they are “actually invaded, or in such imminent Danger as will not admit of delay.” Under this provision, a state can access war powers to act in self-defense, notwithstanding the federal government’s otherwise exclusive prerogative to conduct military operations against foreign entities.
Abbott’s new executive order follows through on this scheme. The order accuses the Biden administration of failing to “protect each State in this Union against Invasion,” as required by Article IV, Section 4 of the Constitution. It then contends that Texas has been “forced” to “deploy state military forces . . . as described in Article I, § 10 . . . to secure the State of Texas.”
Abbott’s invocation of Article I, Section 10, to treat undocumented individuals as though they were enemy combatants on a battlefield is not only wrongheaded and dangerous but also illegal. Only armed invasions that are “too formidable for the civil power to overcome” can trigger states’ right of self-defense. The Founders contemplated such invasions occurring at the behest of “ambitious or vindictive” foreign powers and groups, not unarmed migrants and asylum-seekers. This meaning is confirmed by a series of court cases from the 1990s, each of which rejected the argument that an influx of undocumented individuals could constitute an “invasion.”
Moreover, even if an actual “invasion” were occurring, that would not transfer authority from the United States to Texas on an ongoing or irrevocable basis. While states may have an initial authority to respond to an invasion, their war powers are clearly subordinate to those of the federal government, which retains ultimate responsibility for addressing invasions. The federal government possesses the responsibility to “protect each [state] against Invasion”; the authority to suspend habeas corpus “when in Cases of . . . Invasion the public Safety may require it”; and a repository of war powers, which include providing for calling forth “the Militia to . . . repel Invasions.” It follows that the federal government can disagree with – and foreclose – a state’s exercise of war powers under Article I, Section 10. Were it otherwise, a single state could drag the whole country into a protracted conflict. No one would argue that New York could have unilaterally decided to prosecute a war against al-Qaeda in the wake of September 11, 2001, particularly if the president or Congress had explicitly chosen a different approach.
In addition to exceeding the authority provided by Article I, Section 10, Abbott’s order is yet another thinly veiled effort to take the reins on U.S. immigration policy. To be sure, the Supreme Court has acknowledged that, “[b]y virtue of [their] duty to ‘cause the laws to be faithfully executed,’” the president and state governors have “the discretion to determine whether an exigency requiring military aid for that purpose has arisen.” But Abbott’s assessment that Texas has been “actually invaded” falls outside what the Court described as the “permitted range of honest judgment as to the measures to be taken in meeting force with force, in suppressing violence and restoring order.” The Court indicated that state governors cannot hide behind pretextual justifications for using war or emergency powers to evade the Supremacy Clause—on the contrary, it made clear both that “[t]here is no such avenue of escape from the paramount authority of the Federal Constitution” and that “[w]hat are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.” In this instance, the Court’s precedents would guide a reviewing court to look beyond Abbott’s assertions and construe Texas’s actions as they are: not efforts to remove enemy combatants from the battlefield but instead immigration enforcement, plain and simple. As discussed, this kind of unilateral, state-led immigration enforcement is preempted by federal law. For these reasons, the Biden administration would likely succeed if it challenged the enforcement of Abbott’s executive order in court.
And if all else failed, the president could federalize the Texas National Guard and order it to stand down, taking away the bulk of the personnel and other resources needed to carry out Abbott’s envisioned immigration enforcement efforts. Under 10 U.S.C. § 12406, the president can call the National Guard of any state into federal service “in such numbers as he considers necessary” in three circumstances: when there is an invasion; when there is a rebellion or danger of rebellion against the authority of the federal government; or when “the President is unable with the regular forces to execute the laws of the United States.” An argument could be made that Texas’s actions, insofar as they represent an attempt to usurp the federal government’s immigration enforcement powers, constitute a rebellion against the authority of the federal government. But there is also a strong—and less politically fraught—argument that Texas is interfering with the execution of federal law by civilian authorities. Abbott’s order has the potential to impede the federal government’s ability to conduct a host of activities required by law, such as determining whether those migrants are, in fact, removable; providing a hearing before an immigration judge to those who are entitled to one; and processing the asylum claims of those who are refugees.
To be clear, the president would not need to invoke the Insurrection Act to call Texas’s National Guard forces into federal service and order them to stand down. That’s a crucial point, as there could be significant political blowback from such an invocation. However, if there were any question as to the sufficiency of 10 U.S.C. § 12406, the Insurrection Act would be an available alternative. There is little question that Abbott’s order could constitute a “conspiracy” that “opposes or obstructs the execution of the laws of the United States.” Any such action should be a last resort. Regardless of the legal authority used, federalization of a state’s National Guard against the wishes of the state’s governor is an extreme step—one that would likely be unnecessary given the strength of the arguments that the Biden administration can bring to court.
At bottom, Abbott’s executive order is not a serious effort to engage with constitutional war powers or immigration policy. It is a shameless attempt to contort the law in service of scoring political points and demonizing undocumented individuals, many of whom are fleeing violence and persecution in their home countries. The Biden administration has ample legal and policy options at hand to end this abuse and should exercise them before Abbott escalates the situation even further.