Ex-Trump officials urge Abbott to explain border ‘invasion’

Former Trump administration officials are urging Texas Gov. Greg Abbott to declare an “invasion” along the U.S.-Mexico border and give thousands of state police officers and members of the National Guard sweeping new powers to turn back migrants, essentially giving enforcement powers which were a state responsibility.

The urging comes as the Republican governor prepares to announce “unprecedented measures” on Wednesday to stop migrants from coming to Texas after the Biden administration announced last week it would end a public health law that Asylum restricted to prevent spread of COVID-19.

It’s unclear if Abbott, who is running for re-election in November and is already putting up more border barriers and allowing soldiers to detain migrants for trespassing, supports the aggressive proposals being pushed by former Trump officials. Abbott didn’t elaborate on what moves he will announce on Wednesday.

Border Patrol officials say they are planning up to 18,000 arrivals a day once the health policy known as the Title 42 agency expires in May. Last week, about 7,100 migrants arrived at the US southern border every day.

But the way former Trump immigration officials see it, once politics ends, Texas and Arizona can pick up where the federal government leaves off. Their plan involves a novel interpretation of the US Constitution that would force the National Guard or state police to send migrants to Mexico without regard to immigration laws and law enforcement procedures. Border enforcement has always been a federal responsibility, and in Texas, state leaders have not pushed for such a move.

Tom Homan, Trump’s former acting director of immigration and customs enforcement, said at a border security conference in San Antonio last week that he had spoken to Abbott but gave no indication whether the two-year governor supported the idea.

“We’ve had conversations with his attorneys in his office, ‘Is there a way we could use this clause in the constitution where there’s an invasion?'” Homan said during the Border Security Expo.

Homan on Tuesday described the response from Abbott’s office, which he said took place about three months ago, as “noncommittal but willing to listen.”

In Arizona, Republican Gov. Doug Ducey has also been pressured within his party to declare that the state is under attack and to use extraordinary powers normally reserved for war. But Ducey, who is on a tenure and will not stand for election in 2022, has not embraced the theory and avoided commenting directly on it.

Arizona Attorney General Mark Brnovich, a Republican, issued a legal opinion in February saying Ducey had the authority to use National Guard troops and state law enforcement agencies to forcibly turn back migrants. Brnovich is locked in a tough Republican US Senate primary in which border security is a top issue.

Driving the effort on the right is the Center for Renewing America, a conservative political think tank run by former Trump administration officials. That includes Ken Cuccinelli, an immigration hardliner and former Homeland Security official under Trump. He argued that states are entitled to defend themselves against imminent threats or invasions as defined in the “Invasion Clause” under the “State Self-Defense Clause”.

Speaking to a conservative talk radio station on Tuesday, Abbott’s comments about constitutional authority referred to Congress, which he says has the only power to stem the flow of migrants.

“We will take unprecedented action,” Abbott told radio station KCRS. “Congress has to stop talking about this, stop complaining about this, stop going to the edge and looking at this. Congress must act, just as Texas is taking action.”

When asked if he viewed what was happening on the Texas border as “an invasion,” Abbott didn’t use those words but said he would speak about it Wednesday.

Cuccinelli said in practice he envisioned the plan would look similar to enforcing Title 42, which bypassed US obligations under American law and international treaties to grant asylum. He said he hasn’t spoken to Abbott and said the governor’s current long-range border mission, known as Operation Lone Star, has had little impact on the number of people crossing the border. The mission was also criticized by Guard members for long deployments and little activity, and some arrests appeared unrelated to border security.

“Until you actually bring people back to Mexico, what you do will have no effect,” Cuccinelli said.

Emily Berman, who teaches constitutional law at the University of Houston, said the proponents’ “invasion clause” is embedded within a broader constitutional assurance that the US must protect states from invasion and domestic violence. In addition, she said, the “state self-defense clause” states that states cannot engage in war-like action or foreign policy unless they are under attack.

Berman said she hasn’t seen the constitutional clauses used since the 1990s, when the courts ruled they didn’t have jurisdiction to decide what qualified for an invasion, but believed that one could only be carried out by another government agency.

For example, Berman said Russia’s invasion of Ukraine could be labeled as such because it involves an external government breaching another country’s borders with military force.

“Just because the state says it’s an invasion doesn’t necessarily mean it is, I don’t see what additional legal authority that confers on them,” Berman said, adding that state officials could enforce state laws, but the line is drawn as to what federal law allows.

US Rep. Henry Cuellar, a Democrat whose district includes the Texas border, has criticized the Biden administration for border security and the termination of Title 42. However, he does not support states trying to use new powers that let them “do what they want”.

“I think it should be more of a partnership than saying, ‘Federal government, we think you’re not doing enough, and why don’t we do our border security ourselves?'” he said.

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Associated Press reporters Jonathan J. Cooper in Phoenix and Nomaan Merchant in Washington contributed to this report.

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