AMAC Exclusive – By Seamus Brennan
Since Joe Biden took office in January, U.S. Border Patrol has apprehended more than 1.6 million illegal aliens at the southern border between the United States and Mexico—including nearly 165,000 in October alone—the most annual apprehensions ever recorded. And these are just the ones who were caught (and mostly released). It does not even count the ones who got away.
As bad as the situation has been, the disarray and lawlessness looks to be only accelerating, even as Biden and his chosen border czar, Vice President Kamala Harris, appear content to pretend the problem does not exist. While the federal government continues to fail in its fundamental duty to enforce the law and defend the nation, some states have decided to take action of their own, raising new legal questions about the right of states to secure their own borders.
This idea first took root in Texas this summer when Governor Greg Abbott, after witnessing Biden’s inaction on combatting the border crisis, announced his intention to take matters into his own hands. “While securing the border is the federal government’s responsibility, Texas will not sit idly by as this crisis grows,” he said. “The state is working collaboratively with communities impacted by the crisis to arrest and detain individuals coming into Texas illegally. Our efforts will only be effective if we work together to secure the border, make criminal arrests, protect landowners, rid our communities of dangerous drugs, and provide Texans with the support they need and deserve.”
Since his initial June announcement, Abbott has taken additional steps to coordinate a more national response to combat the drastic rise in illegal immigration this year. In October, Abbott met with nine other state governors to discuss “the far-reaching impact of the Biden administration’s open border policies, particularly with the rise in fentanyl in communities across the nation”—a move that echoes legislation introduced by a Texas state senator earlier this year to create an inter-state compact that would “empower participating states to gain operational control of the border and enforce existing laws” following Congressional consent. This tactic has predictably invited pushback, with opponents of the legislation claiming that immigration law remains solely the purview of the federal government.
Though much of Abbott’s plan to enforce border security in his state has succeeded to a limited degree thus far—including the construction of barrier along the border and empowering state law enforcement agencies to arrest and try illegal aliens—the constitutionality of state-level initiatives to address federal immigration problems remains somewhat unclear.
Stephen Miller, former Senior Advisor to President Donald Trump, told Tucker Carlson recently that he believe state governments do in fact possess the constitutional authority to do what Joe Biden refuses to do. “I would argue,” Miller said, “that the appropriate constitutional remedy is Article IV, Section 4.”
Article IV, Section 4 of the Constitution guarantees “to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion” and “against domestic Violence.”
“It does not say that that has to be in the form of a nation-state actor,” Miller continued. “It would provide the constitutional predicate for the Supreme Court, if they had the moral courage, to strike down this entire scheme, which is a blatant violation of our entire constitutional republican form of government.”
Michael Greenberger of the University of Maryland Law School echoed Miller’s argument and defended Abbott on the basis that Texas is merely enforcing its own pre-established laws. “I think he [Abbott] would have an argument that he’s protecting the sovereignty of the state’s borders, by having people who are not allowed to come into the state,” he said.
The far left, however, strongly opposes such measures. In July, the Biden Justice Department sued the state of Texas over its recent steps to secure the border. “Texas has no authority to interfere with the United States’ ‘broad, undoubted power over the subject of immigration,’” Attorney General Merrick Garland wrote, belying the administration’s repeated claims that it wishes to see the border crisis solved.
The American Civil Liberties Union (ACLU) has similarly questioned Texas’s approach. “Abbott has several times over the past couple of months attempted to create his own version of immigration policy and to enforce his own version of immigration policy,” claimed Kate Huddleston of the ACLU of Texas. “But the Constitution does not allow him to do that. Immigration policy is up to the federal government.” Geoffrey Hoffman, director of the University of Houston’s immigration clinic, went so far as to say that Texas’s involvement “invites a constitutional catastrophe.”
These legal disputes will likely be settled by the courts in the months ahead. But as the border crisis continues to worsen while the Biden administration lets it happen, many Americans will likely see state-level strategies like that of Texas as a last but necessary resort to protect their national sovereignty.
As Abbott and other Republican elected officials across the country have made clear, they are both willing and eager to provide the leadership that Biden has failed to from the moment he was sworn in. And, as Biden may soon discover as his party begins the fight to retain its majorities in Congress next fall, voters are taking notice.