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Texas Declares War – State Overreach or Self-Defense?

What the Constitution says about state action at the national border.

This week, Congress put the border skirmish between Texas and the Biden administration through the lens of our Constitution. While the House Homeland Security Committee moved Secretary Alejandro Mayorkas’ impeachment along, another committee hearing focused on Texas’ declaration of war. Is Governor Greg Abbott on sound legal ground for acting independently to secure the international border with Mexico? As the House Judiciary Committee heard, that may depend solely on the word invasion and what it means.

Don’t Mess with Texas

Abbott claims he was forced to act because “President Biden has instructed his agencies to ignore federal statutes that mandate the detention of illegal immigrants.” The governor said he declared an invasion, triggering Article 1, Section 10, Clause 3 of the US Constitution, invoking Texas’ right of self-defense. The Compact or Invasion Clause of the Constitution prohibits states from engaging in foreign policy or acting independently regarding foreign relations – but there’s a caveat:

“No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

New banner Legal Affairs with ScottMark Brnovich, a Serbian immigrant and former Republican Attorney General of Arizona, was the first witness. He supports a reading of the Constitution that authorizes state action to secure the border. Brnovich said that the word invasion used in our founding charter includes the cartel capture of the Southern border. He draws his understanding from the Federalist Papers and arguments made by the father of the Constitution, James Madison. During a ratification debate, he proclaimed Virginia had the right to act against pirates and smugglers off her coast. Mr. Brnovich testified: “The courts have never said that states do not have the ability to protect themselves, that states do not have the ability to stop or repel an invasion.”

Subcommittee Chairman Chip Roy, a Republican from Texas, said, “The people of Texas have a right to defend themselves, just as I have a right to defend my home and my family if it is under attack.” The ranking minority member, Mary Gay Scanlon (D-PA), said the operative clause “refers to protection against armed hostility from a nation-state or organized political entity, not people fleeing danger in their home country and seeking protection under international and U.S. asylum laws….”

Never Let a Crisis Go to Waste

Democrats on the committee attacked the majority for milking the border crisis for political gain. “They want to grandstand in camo at the Rio Grande and impeach officials so they can campaign on bluster and boogeymen rather than doing the hard work of actually solving problems,” Ms. Scanlon said. The committee leadership also tossed out accusations of racism and that the fuss at the border was the stuff of Republicans’ racial animus. Meanwhile, Secretary Mayorkas is on his way to being impeached, and Democrats seem desperate to make a deal.

The legality of Governor Abbott’s actions is being litigated in the federal courts. The United States Supreme Court gave the Biden administration a win over Texas; however, the ruling was a short-term victory by a close 5-4 vote. It was decided on an emergency basis and only applies until the lower courts process the competing governments’ claims. Oral arguments in Department of Homeland Security v. Texas before the Fifth Circuit Court of Appeals (our country’s most conservative) are scheduled for February 7.

Read More From Scott D. Cosenza, Esq.

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