Key Constitutional Moment: TX Gov Abbott Invokes 'Invasion Power' At the Southern Border

P. Gardner Goldsmith | July 11, 2022
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On July 7, Texas Republican Governor Greg Abbott took executive action to apply state police forces to what he describes as an “invasion” of people crossing the border from Mexico.

And, in issuing his Executive Order, Abbott hands all Americans a powerful opportunity to learn the fundamental rules about immigration and federalism that were established by the Founders and have been overlooked since 1875.

Abbott’s argument lays out numerous claims about what his administration and others describe as a crisis of illegal immigrants crossing into Texas -- mostly from Mexico -- and cites this influx as a source of violent criminal danger, drug trafficking, and potential disease, stating, in part:

“I, Greg Abbott, Governor of Texas, issued a disaster proclamation on May 31, 2021, which has been amended and renewed in each subsequent month effective through today, certifying under Section 418.014 of the Texas Government Code that the surge of individuals unlawfully crossing the Texas-Mexico border posed an ongoing and imminent threat of disaster for a number of Texas counties and for all state agencies affected by this disaster…”

The Abbott administration’s sense of crisis is clear, and Abbott notes that he “deployed thousands of brave men and women from the Texas National Guard and the Texas Department of Public Safety to secure the border, to enforce the laws of Texas, and to prevent, detect, and interdict transnational criminal behavior.”

That, and the recent discovery of 53 corpses inside an immigrant-smuggler’s (coyote’s) truck, are part of his argument for action, coming 48 hours after five Texas counties declared the border crossings an “invasion” and called on Abbott to use his powers as spelled out by the state constitution to respond.

In his EO, Abbott adds:

“(I)n the Texas Disaster Act of 1975, the Legislature charged the Governor with the responsibility ‘for meeting . . . the dangers to the state and people presented by disasters’ under Section 418.011 of the Texas Government Code, and expressly authorized the Governor to ‘issue executive orders . . . hav[ing] the force and effect of law…’”

Of course, many who are focused on liberty, in addition to federalism, likely are aware that many of the terms in the above citations are ambiguous and vulnerable to misuse. The word “disaster,” in itself, is a logical red flag to anyone who believes in individual rights and the core of the Common Law to ensure due process and protect against state/political persecution.

But what about the federalism issue?

At the outset, Abbott’s EO blames the Biden administration for not protecting the border, an assertion tied to the assumption that such protection is a federal responsibility:

“WHEREAS, securing the international border is the federal government’s responsibility, but President Biden has refused to enforce the immigration laws enacted by Congress, including statutes mandating detention of certain immigrants who have claimed asylum or committed a crime…”

Which triggers our moment to learn.

As far as federalism and the U.S. Constitution are concerned, Abbott and his team are incorrect in their claim that immigration is a federal responsibility, but Abbott is correct – constitutionally – to act on a state level to handle the border.

In other words, his state-based actions are consistent with a strict, clear reading of the U.S. and Texas constitutions.

As I have noted for MRCTV over the past few years, discussed with students, and written in my 2007 book, “Live Free or Die,” the words “immigration” and “immigrant” do not appear in the U.S. Constitution.

Many Americans conflate the power in Article One, Section Eight, granting the Congress ability to create a rule of naturalization, with the power to create a rule over immigration. Naturalization is, of course, how visitors become American citizens, not whether visitors can be on the soil of any U.S. state.

The only passage of the Constitution from which one might infer a link to immigration is in Article One, Section Nine, which reads, in part, “The Migration of Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one-thousand-eight-hundred-and-eight…”

This provision tells readers that, prior to 1808, Congress could not write laws regarding the migration into any of the original 13 states from outside the U.S., or from other states in the union. The wording pertained to slave importation, and meant that, unless the Constitution were amended, Congress did not have jurisdiction over importation of slaves in the original states until after 1808, and that it had no power to control the importation of slaves into any new state. 

This was reflected in policy shortly after, as the Constitution was adopted and the Missouri Compromise was achieved. The Compromise codified the process for admission of states from the territories of the Louisiana Purchase. The new northern “free states” and new southern “slave states” would alternate admission, keeping what many politicians believed would be a balance between “slave” and “free” states for representation. 

If the federal government could block importation of slaves into states beyond the original 13 (the horrible practice of slavery can be explored in a different piece), then there would be no need for the Missouri Compromise, because Congress could block the importation of slaves into those new “slave” states, making them de facto “free” states and shifting even more population-based “representative” power to the north.

The Founders understood that immigration was not a federal purview. Thomas Jefferson said so himself in his 1798 Kentucky Resolution Number Four, which was a slap at the Alien Act pushed by then-President, John Adams:

“IV. Resolved, that alien friends are under the jurisdiction and protection of the laws of the state wherein they are; that no power over them has been delegated to the United States, nor prohibited to the individual states distinct from their power over citizens; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that ‘the powers not delegated to the United States by the Constitution nor prohibited by it to the states are reserved to the states respectively or to the people,’ the act of the Congress of the United States passed on the 22d day of June, 1798, entitled ‘An act concerning aliens,’ which assumes power over alien friends not delegated by the Constitution, is not law, but is altogether void and of no force.”

Heck, Texas’s state constitution, approved in 1869, included an article establishing a “Bureau of Immigration” in it. 

If the people of Texas believed Congress had the power to control immigration, why would they bother creating their own Bureau of Immigration?

Related: Dragging The Supply Chain: Biden’s Vax Mandate For Non-Resident Truckers At Border | MRCTV

The answer is that Congress did not have such an enumerated power, and the only reason contemporary Americans fight over what the feds “should do” at the border is because of a 1875 Supreme Court ruling in the case of “Chy Lung v. Freeman” which was a challenge to a California statute imposing a charge on boat-owners who were facilitating ingress to Chinese women (seen as likely prostitutes by the politicians). With the ruling, the Justices simply made up federal immigration control, saying, in part, this errant nonsense, which easily can be refuted by actually reading the Constitution:

“The passage of laws which concern the admission of citizens and subjects of foreign nations to our shores belongs to Congress, and not to the States.”

This led to federal passage of the Page Law that same year, a statute that restricted lower-price Chinese immigrant labor, and established from that point on that the states would suffer the loss of their constitutionally granted power over immigration.

So, what we have in this contemporary story out of Texas is a new wrinkle on a very old face: the face of an imposter federal government using bad SCOTUS precedent to claim powers it does not have, and of state politicians struggling to handle the consequences.

Governor Abbott may be mistaken in his belief that the feds have a role in immigration - but he is, constitutionally speaking, right in taking his action.

And Americans could learn a great deal by studying this situation, and what it reveals about U.S. history.

Related: FLA Gov DeSantis Announces He Will Provide Police Support to TX, AZ Border Security | MRCTV

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