Can Gov. Greg Abbott Deport Illegals Without the Federal Government?

AP Photo/Eric Gay

I have been writing quite frequently on Texas’ Abbott Express initiative to bus illegal immigrants to various blue cities to make them feel the pain of their so-called progressive policies. This is for two reasons. For starters, it’s entertaining as hell and might actually push the geriatric authoritarian in the White House to do something about the migrant crisis. And secondly, I coined the term “Abbott Express,” and I’m hoping it will catch on.

Yes, I know, I’m horrible.

But some on the right have criticized Gov. Greg Abbott for this operation, arguing that the millions of dollars spent busing migrants to blue cities would be better spent simply deporting them. But the question is: Can he do that?

Before exploring this question, it is important to note that Gov. Abbott already issued an executive order in July authorizing the state National Guard and Department of Public Safety (DPS) to arrest illegal aliens and return them to the southern border, where they can be handed off to federal authorities. In a press release, Abbott said:

While President Biden refuses to do his job and enforce the immigration laws enacted by Congress, the State of Texas is once again stepping up and taking unprecedented action to protect Americans and secure our southern border.

Under the Constitution, only the federal government is allowed to enforce laws related to immigration policy. However, Abbott cited Article IV, section four of the Constitution in the executive order:

[T]he United States . . . shall protect each [State in this Union] against Invasion,’ and thus has forced the State of Texas to build a border wall, deploy state military forces, and enter into agreements as described in Article I, § 10 of the U.S. Constitution to secure the State of Texas and repel the illegal immigration that funds the cartels.

However, while Abbott has ordered state authorities to return illegals to the border, he has stopped short of declaring the migrant crisis an invasion, which would allow him to unilaterally deport these individuals to Mexico or another country. This has earned him criticism from Republicans who are more hawkish on the border.

Naturally, the open borders types argue that the governor cannot make such a move. In a piece for The Hill, author Raul Reyes argued that the section of the Constitution that Abbott cited in his executive order was not applicable in this situation. He referred to a Supreme Court ruling against Arizona, affirming that states are not allowed to mandate immigration policy.

“Arizona may have understandable frustrations with the problems caused by illegal immigration … but the state may not pursue policies that undermined federal law,” Justice Anthony Kennedy wrote in the majority opinion. There have also been other failed cases that attempted to use the “invasion clause” as well. It would be likely that the courts would strike down Abbott’s declaration as well.

However, Arizona Attorney General Mark Brnovich argued in February that Gov. Doug Ducey would be within the limits of the Constitution if he invoked war powers and used the state’s National Guard to help repel the “invasion” of drug cartels and gangs. In a legal opinion, he insisted that the state is being “actually invaded” by drug cartels, gangs, and human-smuggling operations. Even though they are not doing so under the aegis of a foreign power, they still fit the definition of invaders, according to the official.

This is also a compelling point – drug cartels are engaging in illegal activity that is harming Americans. They are smuggling fentanyl and other deadly drugs into the country and also smuggling individuals who would not be able to gain access legally because they have criminal records.

Moreover, the migrant crisis the nation is experiencing in 2022 is leaps and bounds worse than what was happening to Arizona in 2012. Indeed, it is hard to see the two million people who are crossing the border illegally and say that does not constitute an invasion.

Nevertheless, it seems likely that Abbott has refrained from issuing such a declaration because he knows the courts will likely strike it down. Moreover, it could potentially expose state law enforcement to criminal liability if they were to usurp the role of the federal government and deport these individuals unilaterally. “There are federal laws that law enforcement can be prosecuted under if they were to take someone without authority and immediately return them across the border,” Abbott said during an April news conference.

Of course, if he were to issue such a declaration, he might find himself locked in a game of chicken with the Biden administration, daring them to arrest state law enforcement officials for doing what the White House clearly is not interested in doing. But perhaps he does not want to subject them to that treatment – especially if the courts rule against him anyway.

At this point, we cannot put anything past this administration. If thousands of fentanyl overdose deaths aren’t pushing the president to act, then it is not unrealistic to expect that he would have no problem throwing people in cages for trying to deal with an increasingly dire problem.

But does this mean that resources are being effectively spent on busing these individuals to blue cities? I’ll dive deeper into that in another piece. But when it comes to declaring an invasion, I believe Abbott would be on firm ground as that’s clearly what is happening. However, my analysis doesn’t matter, ultimately. Even though the governor knows he would be right in doing so, he seems to have concluded that the cons outweigh the pros of such an action.


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