In the last few weeks, Texas politicians have escalated confrontation with the Biden administration over its supposed failure to engage in immigration enforcement. In doing so, they have made extraordinary fact-free, conspiratorial assertions that the federal government is purportedly actively working to bring migrants to the United States, to increase votes for Democrats and in partnership with the cartels. Lieutenant Governor Dan Patrick claimed recently that the Biden administration’s “goal” is “to put millions of people into this country, one day turn them into citizens, and one day turn them into voters and take over the country”—and that the federal government doesn’t “care if people die” in the process. Attorney General Ken Paxton went even further, claiming with no evidence that the “federal government” is “actually participating with cartels and bringing people here as fast as they possibly can.”
Not coincidentally, in the last few weeks Texas has also asserted an extraordinary, previously fringe legal theory: that Texas is under invasion based on immigration and must assert a right to self-defense. This legal theory has its roots in the same racist “great replacement” conspiracy theory that has fueled Patrick and Paxton’s claims. Through civil rights enforcement, the Biden administration can and should counter the racist “invasion” narrative and years of Texas’s escalating border actions. Doing so will reassert at the Texas-Mexico border the rule of law, migrants’ humanity, and an essential role of the federal government—protecting civil rights from state law enforcement abuses.
Texas’s Border Extremism is Escalating
For three years, under Governor Greg Abbott’s “Operation Lone Star” program, Texas has sent thousands of state police and National Guard to border communities, where they have targeted migrants for arrest on state charges, conducted a disproportionate number of traffic stops, put up razor wire, and even reportedly pushed children back into the Rio Grande. Currently, the state is denying the Department of Homeland Security (DHS) access to a border park. Instead, Texas National Guard and law enforcement are building razor wire barriers, telling migrants to turn back, and arresting some for misdemeanor trespass. This comes days after the Supreme Court restored Border Patrol’s ability to remove Texas’s razor wire. In an inflammatory statement, Abbott asserted that Texas must “defend and protect itself” from an “invasion” of immigrants.
Abbott claims that Texas has a constitutional “right of self-defense”; that he has accordingly “declared an invasion under Article I, § 10, Clause 3” based on President Joe Biden’s purported “refusal” to enforce immigration law; and that Texas will continue to act in light of its purported power to repel invasion. Abbott’s argument is antithetical to governing Supreme Court precedent, which has long held that immigration policy—as to entry, exit, and status—and immigration enforcement are federal powers. The Court explained in 1915, “the authority to control immigration—to admit or exclude aliens—is vested solely in the federal government.” In the 2012 touchstone decision Arizona v. United States, the Court reaffirmed that “the federal power to determine immigration policy is well settled” and held several state statutory provisions, including one authorizing state and local arrests for offenses making a person potentially deportable, preempted under federal law. As numerous scholars have argued, the invasion argument is legally outrageous. Despite that, 25 Republican governors issued a joint statement saying they “stand in solidarity with” Texas and endorse the invasion legal theory.
“Invasion”: Roots in White Supremacist Conspiracy Theory
How did we get to this extraordinary moment? The white supremacist “great replacement” conspiracy theory has long fueled politicians’ “invasion” rhetoric—in a way, escalation from rhetoric to legal argument is a grimly logical next step.
In August 2019, a white supremacist drove hundreds of miles to El Paso, Texas, to target Latinos in a mass shooting, killing 23 people. In a written manifesto, the shooter claimed that his actions were to combat a “Hispanic invasion of Texas” and denounced Latino political power in the state. One day earlier, in a fundraising appeal, Abbott argued that Texans need to “DEFEND” the border because “[t]he national Democrat machine has made no secret of the fact that it hopes to ‘turn Texas blue.’” Abbott told his would-be supporters, “unless you and I want liberals to succeed in their plan to transform Texas—and our entire country—through illegal immigration, this is a message we MUST send.”
Both Abbott and the El Paso shooter were espousing the “great replacement” conspiracy theory—the fiction that liberal elites are working to bring nonwhite immigrants to the United States to “replace” white and conservative political power. (This idea rests on the predicate that immigrants will necessarily vote for liberals, which is not the case.) Following the shooting, amid intense backlash, Abbott recognized “the importance of making sure that rhetoric will not be used in any dangerous way.” But that was, obviously, short-lived.
Four years after the El Paso shooting, the language of “invasion” and other white supremacist rhetoric is common in Texas politics, as are conspiracy theories about the federal government’s involvement in attracting migrants to the country. For example, Kinney County is a border county that has played a leading role in Texas’s extreme anti-immigrant policies. A website run by the county asks for donations to “Defend Our Borders” from “this federally funded invasion.” And in 2021, when thousands of mostly Haitian migrants waited for federal processing in Del Rio, Texas, Patrick claimed that Biden and Democrats had started a “silent revolution” “trying to take over our country without firing a shot.” He argued, “in 18 years if every one of them has two or three children, you’re talking about millions and millions and millions of new voters and they will thank the Democrats and Biden for bringing them here. Who do you think they’re going to vote for?”
A fall 2023 conversation between a Texas state legislator and the then-executive director of Texans for Strong Borders —an organization with extensive white supremacist ties and extreme rhetoric that successfully pushed anti-immigrant legislation—provides another sign of the conspiracy theory’s reach. The advocate asserted that “the federal government” is “actively facilitating the invasion,” claiming “an orchestrated scheme” in which Democrats will extend voting rights to undocumented immigrants to flip Texas and permanently cement the Electoral College for Democrats. The legislator nodded along and emphasized in responding that “this is a fight between good and evil.”
These, and Patrick’s and Paxton’s recent public statements, are all variations of the racist great replacement conspiracy theory. Like a virus, the idea has made the jump from narrative to legal claim.
Invasion Legal Origins: White Supremacist Rhetoric, Anti-Immigrant Policies
The constitutional “invasion” theory appears to have originated not with Abbott but, years earlier, with local and national political figures who have espoused racist ideas and implemented anti-immigrant policies. Its apparent first expression was intertwined with great replacement rhetoric.
The first assertion of the legal “invasion” idea appears to have come from Kinney County Attorney Brent Smith, in an April 2021 letter to Texans. The letter claimed that Texas was being “invaded” by people who “originate from many different countries . . . including the Middle East.” It argued that under Article I, Section 10, Clause 3, Texas has “the concurrent authority” to engage in immigration enforcement “in times of ‘invasion or imminent harm.’”
The letter was consistent with racist views that Smith has espoused, such as claiming that with immigration “we will lose our country . . . it won’t look the same way.” Smith has been on the leading edge of Texas’s anti-immigrant policies: for example, he suggested in 2021 that Texas could unilaterally deport individuals and appears to have originated Texas’s scheme of arresting migrants on state trespass charges. Three years later, his letter’s detailed legal argument is consistent with Abbott’s current one.
Two months after Smith’s letter, three former Trump administration DHS officials floated the invasion theory. Former Customs and Border Protection Commissioner Mark Morgan, former senior official Ken Cuccinelli, and former DHS Office of General Counsel attorney Mike Howell cited the “invasion or imminent harm” language in Article I, Section 10, Clause 3 and argued, “Texas, as a sovereign state, has the inherent authority to protect its citizens and enforce its own borders.” Long before espousing this legal idea rooted in racism, both Morgan and Cuccinelli had made racist statements. In 2019, both publicly defended then-President Donald Trump’s claim that immigration at the U.S.-Mexico border was an “invasion.”
In October 2021, Cuccinelli published a blueprint for provoking a state confrontation with the federal government through the invasion clause. He argued that states should send National and State Guard to the border; instruct National Guard and law enforcement to unilaterally deport migrants; and bus migrants out of state, among other policy steps. Several months later, when Smith orchestrated declarations of invasion by Texas counties, Cuccinelli and Morgan attended the Kinney County press conference to pressure the state to do the same. Now, Abbott has declared an invasion and implemented many of Cuccinelli’s recommendations. This fringe legal theory with a racist predicate has broken through to the conservative mainstream.
Abbott’s Incrementalist Approach to Eroding Federal Control over Immigration
Great replacement rhetoric and its disguise in legal garb has partially led to the volatile current situation at the Texas border. Equally important, though, has been Abbott’s incrementalist approach to invoking the invasion theory and to provoking a confrontation with the federal government. Abbott has chipped away at federal control over immigration enforcement for years–and has not encountered significant opposition from the Biden administration.
From April 2021 through fall 2022, Abbott resisted declaring an invasion—despite entreaties from Kinney County and criticism from Cuccinelli. Instead, Abbott declared a state of disaster, comparable to a hurricane or flood. This was a norms-shattering step, and similar to Trump’s declaration of emergency to build the border wall. It also enabled Abbott to take three key steps starting in 2021: (1) saturating border communities with state law enforcement and National Guard; (2) creating a parallel immigration enforcement system predicated on state criminal trespass law, which targets migrants for often-questionable arrest and channels them into a separate detention and prosecution system rife with civil rights abuses; and (3) invoking an interstate emergency aid compact to successfully urge other states to send law enforcement to the border.
In the intervening years, Abbott has entrenched these aspects of Operation Lone Star. The Texas National Guard’s stringing of razor wire along border areas began initially to create physical fences, to provide constructive notice under state law of trespass. By spring 2023, Texas had begun characterizing the razor wire barriers as “essential impediments” to migration. Over 28 months, Texas has arrested almost 10,000 migrants on state misdemeanor trespass charges. Abbott has been clear about the trespass program’s goal to circumvent federal authorities: he’s explained that Texas is “employing state law, as opposed to federal law, because when we make an arrest under federal law we typically have to turn people over to the federal authorities, and they just release them.”
Perhaps most startlingly from a federalism perspective, Abbott has used the Emergency Management Assistance Compact (EMAC) to circumvent the federal government. EMAC is an interstate agreement to share resources in disasters, such as a hurricane or flood. In 2021, Abbott and the then-Arizona governor sent a letter asking other states to “send all available law-enforcement resources to the border in defense of our sovereignty and territorial integrity.” In response, seven states sent National Guard and/or law enforcement. In spring 2023, Abbott again invoked EMAC, and 13 governors committed to sending 1,305 National Guard and 231 law enforcement to the Texas-Mexico border. They claimed they were “stepping up to protect Americans where Biden has failed.” While these deployments were typically short term and better viewed as political stunts, they have helped move the Overton window—placing within mainstream political thought the idea that states must band together to confront immigration at the border with armed force.
The Biden administration has not meaningfully pushed back on any of these efforts, either through actions or public statements. In July 2022, a Department of Justice review of Operation Lone Star for civil rights violations under Title VI came to light through public records requests. No formal investigation has ever been opened. There has been no public response to calls for investigations under other civil rights authority and for misappropriation of COVID relief funds. The administration has avoided most public comment on Abbott’s state immigration enforcement system. In a Texas Monthly interview, the then-Border Patrol chief briefly called for “coordination.”
Now, Abbott has combined the fruits of his incremental policy entrenchment under “emergency” authority with the bold assertion of the constitutional invasion theory. Texas’s occupation of a municipal park, denial of access to Border Patrol agents, and arrest of migrants on state criminal trespass charges are the culmination of years-long policies. State governors were primed to readily respond to a request for support by multiple requests, and positive responses, over years. And Texas leaders’ open assertion of inflammatory rhetoric about the Biden administration and a legal theory rooted in racism is possible due to a years-long narrative.
Time for the Biden Administration to Enforce Civil Rights Law at the Border
This showdown between Texas and the federal government has thus been building for years. The Biden administration’s failure to engage as Texas escalated, until its actions became extraordinarily egregious, was plainly misguided. To avert a crisis, the federal government now needs to shift the legal ground and narrative framing away from Texas’s racist, conspiracy-theory-based claim of immigration enforcement as tantamount to war.
To do so, the federal government should not only continue to assert federalism arguments but also enforce federal civil rights laws at the Texas-Mexico border. 34 U.S.C. § 12601 provides for DOJ pattern-or-practice investigations of and litigation against law enforcement agencies who violate civil rights, including through unlawful stops and arrests. The Civil Rights of Institutionalized Persons Act similarly provides for legal action where state and local agencies subject detained individuals to a pattern or practice of rights violations. 18 U.S.C. §§ 241 and 242 provide for criminal prosecution where state and local officials deprive individuals of constitutional or statutory rights or conspire to do so.
There is ample evidence that, under Operation Lone Star, Texas law enforcement has engaged in racial profiling in traffic stops in border communities; arrested migrants for trespass without probable cause; held migrants long after they should have been released from custody; and held migrants in horrific conditions of confinement, among other civil rights violations—in a program created to punish migrants for coming to the United States.
Now is the time for DOJ to robustly enforce federal civil rights protections in Texas border communities, on behalf of residents and migrants. In doing so, DOJ should also publicly assert the need for law enforcement to treat all individuals with dignity and in accordance with the law. Undertaking this effort and combating rights violations by state law enforcement will help recast the situation at the border from a military crisis to a humanitarian emergency, and recenter the humanity of migrants. It will also shift the legal stakes from purely a constitutional federalism confrontation to highlight the federal government’s civil rights authority and duty.
The invasion theory is a white supremacist conspiracy theory wrapped in the Constitution. Continuing to ignore this underlying reality is dangerous and will only lead to further escalation, both governmental and by individuals fueled by hate. This is a civil rights as well as a federalism crisis, and the federal government should start treating it accordingly.