Image: Galveston County Sheriff’s Office Border Security Response Team deputies apprehend illegal border crossers in Kinney County, Texas. Image Credit: Galveston County Sheriff’s Office
By Bethany Blankley [The Center Square contributor] –
Three years ago this April, a small border county took a stand to defend its few thousand residents after they were inundated by border-related crime.
On April 21, 2021, Kinney County was the first to issue a disaster declaration, citing the border crisis. Atascosa, Goliad and La Salle counties quickly followed.
Texas Gov. Greg Abbott then issued a disaster declaration on May 31, 2021, to provide counties with support. On March 6, 2021, he launched Texas’ border security mission, Operation Lone Star.
At a June 11, 2021, meeting in Del Rio, Texas, when Abbott first announced he was building Texas’ border wall, Kinney County Attorney Brent Smith first suggested that Abbott use his constitutional authority to declare an invasion, citing Article 1, Section 10, Clause 3 of the U.S. Constitution.
At the time, no one was using the word invasion or even discussing it.
Over the next year, residents and lawmakers called on Texas Attorney General Ken Paxton to issue a legal opinion on “invasion.” The only state attorney general to do so was former Arizona Attorney General Mark Brnovich in February 2022. Brnovich cited former Supreme Court Justice Antonin Scalia to make the case for states’ right to self-defense. Nearly two years later, he made the same case before Congress. The Center for Renewing America also published a paper explaining the federal government’s constitutional requirement to protect states against invasion.
During an election year in 2022, calls for Paxton and Abbott to issue an invasion opinion and formal invasion declaration, respectively, went unanswered. On July 5, 2022, Kinney, Goliad and Terrell counties were the first counties in history to declare an invasion, citing the U.S. and Texas constitutions. By August 2022, Paxton’s office was still saying it wouldn’t issue an opinion on invasion citing federal code.
After the November 2022 election, a former active-duty Navy JAG and national security law expert renewed the call for Texas to declare an invasion. Days later, Abbott sent a letter to county judges pointing to an executive order he issued in June 2022. In it, he cited the Texas Disaster Act of 1975 and U.S. Constitution as his authority to direct the Texas National Guard and Texas Department of Public Safety to apprehend illegal foreign nationals “who cross the border between ports of entry or commit other violations of federal law, and to return [them] to the border at a port of entry.”
The Texas legislature, which has not passed an invasion resolution, has allocated over $11.6 billion for border security efforts over four years. Last year, it passed SB 4, to implement provisions of Abbott’s order, which he signed into law. It was set to go into effect this month but was challenged in court and is currently before the U.S. Supreme Court.
Over the past three years, Abbott has sent multiple letters to President Joe Biden, held press conferences with Republican governors, and most recently, 25 Republican have pledged to support Texas’ border security operations. This January, Abbott issued a statement on Texas’ constitutional right to self-defense and sent a letter to Biden, saying the president had broken his compact with the states.
Florida Gov. Ron DeSantis, who was among the first to send troops, law enforcement and other personnel to Texas, also argued no one would have ratified the U.S. Constitution if protection for states was excluded.
In an op-ed published by the New York Post last month, Abbott again made the argument for Texas’ constitutional right to self-defense, incorporating similar arguments Brnovich first made in 2022.
Nearly three years after Smith first sounded the alarm, 60 Texas counties have issued disaster declarations and 55 have passed invasion resolutions, with some doing both.
While many claim the issue is about illegal immigration, military experts have warned what’s occurring is cartel-driven migrant warfare. Smith and others agree, arguing what’s at stake is the safety and security of a state’s sovereign border. Transnational criminal organizations gained operational control of the border under Biden, creating imminent danger to Americans, they argue. When the federal government violates or fails to enforce federal law, the U.S. Constitution provides a guarantee to states.
Being born and raised in a small border community, Smith and his neighbors have witnessed waves of illegal border crosser activity over the years. But they argue the relentless crime was unleashed after Biden halted enforcement of federal immigration laws on his first day in office. Since then, an estimated more than 11 million people have illegally entered the U.S., including two million who are known to have evaded capture. Texas, which has borne the brunt of illegal border crossings, saw a record 1.9 million in fiscal 2023 alone, The Center Square exclusively reported.
Smith, who was first elected county attorney in 2020, told The Center Square, “I had a front row seat to the destruction of the safety, security, and property of many whom I consider family. Doing nothing was never an option for me. As Texans, we have a sacred duty to preserve those liberties that we have inherited from others who paid the ultimate price.
“From day one, it was very clear that the border crisis was intentional and would require a constitutional remedy. The inalienable right of self-preservation is the cornerstone to our Constitution and underlies everything we hold sacred as Americans. The State’s self-defense clause within Article 1, §10, Clause 3 derives from the inalienable right of self-preservation, which empowers each sovereign state to act in preserving the lives, liberty, and property of the people. This right is inalienable to the state of Texas, meaning it cannot be adjudicated away or prevented by any court ruling.”
While many may try to make the issue about immigration, human rights, racism or even secession, Smith argues, the issue is the constitutional sovereign authority of states to protect their citizens.
About the Author: Bethany Blankley is a writer at the Center Square, Patheos/Hedgerow, political analyst and former press secretary at Capitol Hill / NY / WDC. Follow Bethany on Twitter@BethanyBlankley.