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Texas governor: Feds have broken compact with the states over border crisis

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(The Center Square) – Texas Gov. Greg Abbott has invoked the invasion clause of the U.S. Constitution and said he would defend his state. The move comes after the U.S. Supreme Court this week ruled that federal Border Patrol agents can destroy Texas concertina wire border barriers.

“The federal government has broken the compact between the United States and the States,” Abbott said in a statement. “The Executive Branch of the United States has a constitutional duty to enforce federal laws protecting States, including immigration laws on the books right now. President [Joe] Biden has refused to enforce those laws and has even violated them.

“Despite having been put on notice in a series of letters – one of which I delivered to him by hand – President Biden has ignored Texas’s demand that he perform his constitutional duties” Abbott said, adding that he “violated his oath to faithfully execute immigration laws enacted by Congress.”

Abbott sent eight letters to the president, telling The Center Square he never received a response.

He also instructed the Texas National Guard to continue building concertina wire barriers. The Texas Department of Public Safety has also said it would “hold the line” at the border.

In his statement, Abbot highlighted examples of how he says the president is violating federal law. Instead of prosecuting foreign nationals for the federal crime of illegal entry, Biden “sent his lawyers into federal courts to sue Texas for taking action to secure the border;” instructed federal agencies “to ignore federal statutes that mandate detaining” illegal border crossers; violated laws established by Congress to “illegally allow their en masse parole into the United States;” and is “enticing” illegal entry, he said.

Abbott cites the “Guarantee Clause” of the U.S. Constitution (Article IV, Section 4), which he says, “promises that the federal government ‘shall protect each [State] against invasion.’” He also cites the “Invasion Clause,” Article I, Section 10, Clause 3 of the Constitution, “which acknowledges ‘the States’ sovereign interest in protecting their borders.’”

Abbott argued Biden’s failure to fulfill his constitutional duties “has triggered Article I, § 10, Clause 3, which reserves to this State the right of self-defense. For these reasons, I have already declared an invasion under Article I, § 10, Clause 3 to invoke Texas’s constitutional authority to defend and protect itself.”

The governor is referring to a letter he sent to county judges in November 2022 after county officials passed invasion resolutions and called on him to officially declare an invasion. He sent it just days after constitutional law and national security law expert Jonathan Hullihan made the case for Texas to declare an invasion.

So far, 51 counties have declared an invasion, as The Center Square has exclusively reported. The Texas legislature hasn’t but has allocated an unprecedented $11.5 billion to border security efforts.

Although Abbott has never signed an invasion resolution declaring an invasion, declared an invasion before the legislature, or called on the legislature to declare an invasion, some argue his letter was enough.

He made his position clear on Wednesday, drawing a final line in the sand, saying the U.S. Constitution “is the supreme law of the land and supersedes any federal statutes to the contrary. The Texas National Guard, the Texas Department of Public Safety, and other Texas personnel are acting on that authority, as well as state law, to secure the Texas border.”

Kinney County Attorney Brent Smith, who was the first to argue for defending Texas sovereignty, says the Constitution “self-defense clause” authorizes states to defend themselves when “actually invaded, or in such imminent Danger as will not admit of delay.”

Texas law enforcement and Customs and Border Patrol agents have seized enough fentanyl to kill more than 6 billion people in one year. Republican attorneys general nationwide have argued fentanyl is a weapon of mass destruction being used by the cartels to kill Americans. This alone “is putting Americans in imminent danger,” Smith said.

Hullihan, general counsel for Citizens Defending Freedom, said what’s at stake is constitutional authority and state sovereignty. The constitutional clauses cited by counties and the governor aren’t about immigration, he said. The invasion of Texas, as many counties argue in their resolutions, is directly related to the threat posed by Mexican cartels, which Abbott and the Texas legislature designated as foreign terrorist organizations last year.

Hullihan said Crockett County’s resolution is one of the strongest passed because it identifies the cartels acting as “paramilitary, narco-terrorist organizations that … use migrant warfare to obfuscate the trafficking of drugs and people by utilization of irregular techniques, tactics, and procedures. The terrorist designation acknowledges that non-state actors are conducting irregular warfare operations and breaching the sovereignty and national security of the United States, and furthering Gov. Abbott’s formal diplomatic representation to the United States that the State of Texas is not protected against an in invasion.”

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