As Biden Stands Down at the Border, Can States Step Up?



Bracing for an even bigger stampede of illegal aliens when the Biden administration halts Title 42 expulsions, two beleaguered border states are exploring legal steps to stop what is already seen as an “invasion.”

“The violence and lawlessness at the border caused by transnational cartels and gangs satisfies the definition of an ‘invasion’ under the U.S. Constitution, and Arizona therefore has the power to defend itself from this invasion under the governor’s authority as Commander-in-Chief,” Arizona Attorney General Mark Brnovich declared in February.

Now Texas’ attorney general is being asked to follow suit.

“There are many similarities between the two states and the current border crisis,” said state Rep. Matt Krause, R-Haslet, chairman of the Texas State House Committee on General Investigating. “The effects of a porous border are felt every day. Texas has the right and responsibility to secure its border.”

When Title 42 is lifted, Department of Homeland Security (DHS) officials estimate up to 500,000 illegal aliens will cross the border per month – roughly 18,000 per day. That would be an unprecedented 5-6 million in a single year, and Arizona and Texas would bear the brunt of that traffic.

Paxton, who is in the midst of a primary re-election fight with Texas Land Commissioner George P. Bush, has not responded to Krause’s call to action.

Arizona’s Brnovich notes that President James Madison sanctioned Virginia’s use of state militia to stop smugglers as a valid exercise of authority. “There is every basis to conclude this sovereign power was retained as reflected in the Constitution’s State Self-Defense Clause,” according to Brnovich’s legal opinion.

“The Import-Export Clause in Article I, Section 10 also recognizes that states retain sovereign authority to execute inspection laws, which requires operational control of the border to channel entry of goods to authorized ports of entry,” Brnovich says.

Furthermore, the Invasion Clause in Article IV, Section 4 provides that “[t]he United States … shall protect each [state in this union]against invasion.”

“The scenario that justified Virginia to use state military forces to protect its own borders from violent smugglers now confronts Texas on a much larger scale,” says Kinney County (Texas) Attorney Brent Smith.

Kinney County, population 3,600, has aggressively leveraged Texas law to convict and incarcerate more than 700 criminal aliens in the past six months. Local and state charges range from criminal trespass to auto theft to human smuggling.

Even so, Smith says residents “continue to sustain vast amounts of property damage and are threatened with imminent harm.”

Such dangers are endemic across South Texas, yet other border counties have done little or nothing. Prosecutors are not prosecuting; state facilities designated to house criminal aliens remain at less than half capacity.

By failing to declare a border emergency, frontline counties are foregoing law-enforcement resources available through Gov. Greg Abbott’s Operation Lone Star. So it appears that Texas has work to do on its end while the Biden administration opens the floodgates and dismantles “public charge” laws, clearing the way for migrants to partake of a smorgasbord of benefits.

With a clear and present danger to public safety, along with the daunting downstream costs of providing services to ever more illegal aliens, states are up against a wall.

“The Biden administration has essentially redefined ‘border security’ to mean more orderly admission and processing of illegal aliens regardless of how many migrants show up at our border, observes RJ Hauman of FAIR. “For all intents and purposes, they might as well change the name of U.S. Customs and Border Protection to U.S. Customs and Border Processing,” he added.

Recognizing dereliction of duty when they see it, Arizona, Louisiana and Missouri sued the Biden administration, seeking to require continued enforcement of Title 42. If that lawsuit fails, Hauman says, “Nearly every border crosser will be released into the United States – a message that will be heard loud and clear not just in Central America, but around the world. It is an unprecedented invitation to chaos at the border.”

Whether states can take immigration enforcement into their hands remains an open question. When Arizona passed laws to assert control over its border with Mexico in 2010 those statutes were smacked down by federal judges. But the dispute was never argued at the U.S. Supreme Court.

Was James Madison correct? Do states have a constitutional right and responsibility to defend themselves when the federal government will not? Or can Joe Biden simply stand down and facilitate an unprecedented invasion of this country? It’s time to decide.

About Author

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Bob Dane, the Federation for American Immigration Reform (FAIR)'s Executive Director, has been with FAIR since 2006. His deep belief is that immigration is the most transformational determinant of where we are heading as a nation and that our policies must be reformed in the public interest. Over many years on thousands of radio, TV and print interviews, Bob has made the case that unless immigration is regulated and sensibly reduced, it will be difficult for America to reduce unemployment, increase wages, improve health care and education and heighten national security. Prior to joining FAIR, Bob spent twenty years in network radio, marketing and communications after an earlier career in policy and budgeting within the Reagan Administration. Bob has a degree from George Mason University in Public Administration and Management.

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