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By Sean O'Driscoll
Senior Crime and Courts Reporter
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The Texas governor's declaration of an invasion along the southern border is legal "nonsense," a constitutional law professor said.
Professor Peter Shane, a law lecturer at New York University, was responding to Greg Abbott's decision to overrule the federal government and declare an immigrant "invasion" along the U.S.-Mexico border amid an ongoing battle between Texas and President Joe Biden's administration over immigration. There were more than 2.4 million encounters at the U.S.-Mexico border during the 2023 fiscal year, up from roughly 1.7 million in 2021, according to U.S. Customs and Border Protection.
Abbott's declaration on Wednesday invoked a rarely used U.S. constitutional provision that provides special powers during times of invasion. Abbott accused the White House of having "broken the compact between the United States and the States" with its immigration policy. He said the administration's failure to fulfill its duty under the Article IV Section 4 of the Constitution triggered Texas' right to protect itself under Article I Section 10 Clause 3.
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"This is nonsense. Governors have no power to declare anything under the U.S. Constitution, nor does the Constitution give states any legal power to countermand the exercise of federal authority," Shane told Newsweek.
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On Monday, the U.S. Supreme Court gave federal agents permission to remove razor wire from the Texas-Mexico border that had been installed on Abbott's orders.
In a response on Wednesday, Abbott released a letter reiterating his claim that illegal migration constitutes an "invasion" of Texas and in response said he had invoked "Texas's constitutional authority to defend and protect itself," which "is the supreme law of the land and supersedes any federal statutes to the contrary."
The letter claimed that President Joe Biden "violated his oath" and "instructed his agencies to ignore federal statutes that mandate the detention of illegal immigrants." It said the impact of federal policy "is to illegally allow their en masse parole into the United States."
Responding on X, formerly Twitter, Representative Greg Casar, a Texas Democrat, backed an earlier call by colleague Joaquin Castro for Biden to federalize the Texas National Guard.
"Greg Abbott has continued to use political stunts and inflammatory language to advance his own agenda, violating the Constitution and endangering both U.S. citizens and asylum seekers," Casar wrote.
"Abbott is following the Donald Trump playbook: make immigration harder and more dangerous, so asylum seekers are pushed into the hands of cartels and the system remains broken. I agree with Joaquin Castro: if Abbott is defying yesterday's Supreme Court ruling, President Biden needs to establish sole federal control over the National Guard."
Newsweek reached out to Abbott's office by email on Thursday for comment.
The National Guard in individual states ordinarily falls under the control of their respective governors, but they can be federalized.
In 1957, President Dwight Eisenhower's administration federalized the Arkansas National Guard after Governor Orval Faubus ordered them to prevent Black students from attending Little Rock Central High School during the segregation era. Under federal control, the Arkansas National Guard, together with federal troops from the 101st Airborne Division, ensured that the students were able to attend the school.
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