Texas Gov. Greg Abbott claims that President Biden’s failure to faithfully execute the immigration laws enacted by Congress has violated Article IV, § 4 of the U.S. Constitution, which provides that “[t]he United States . . . shall protect each [State in this Union] against Invasion.”

The border crisis hit a new record in May 2022, which saw the largest number of illegal border crossers along our southern border since CBP began keeping track in 2000, and these unprecedented numbers are overwhelming local communities across Texas.

Abbott has decided to attempt to exercise his state’s authority under Article I, § 10 of the U.S. Constitution to protect itself against an “invasion” of undocumented migrants at the Southwest border.

Clause 3 of Article 1 § 10 states:

“No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” (Emphasis added)

The Supreme Court has held — in the mid-1800s — that the phrases “unless actually invaded” and “in such imminent danger” refer to an invasion or the threat of an invasion by a foreign enemy, “Indians,” or pirates.

It would be quite a stretch to apply that interpretation to this situation.

But the courts may do it anyway.

It’s reasonable to expect states to be able to protect themselves when a president releases more than a million migrants — about whom little if anything is known — into the country.

Gov. Abbott isn’t the only one who is concerned. Ipsos recently announced poll results which indicate that more than half (54 percent) of American adults believe it is at least somewhat true that we’re experiencing an invasion at the southern border (40 percent of the Democrats, 76 percent of the Republicans, and 46 percent of the independents).

And 42 percent of American adults believe that it is at least somewhat true that the Biden administration is implementing an open border policy at the southern border (29 precent of the Democrats, 63 percent of the Republicans, and 37 percent of the independents).

Record-breaking numbers

The border patrol has encountered more than 1.8 million illegal crossers at land borders in fiscal 2022, and there are still two months left to go in the fiscal year. That number is higher than the entirety of illegal crossers in fiscal 2021, when the border patrol encountered nearly 1.7 million illegal crossers. The highest number of encounters in the four previous fiscal years was 859,501 in 2019.

Catch and release

In May, U.S. Customs and Border Protection (CPB) released 95,318 migrants into the United States that it had encountered at the Southwest border, bringing the total of illegal migrant releases under the Biden administration to 1,049,532 — which is a population larger than the number of residents in the president’s home state of Delaware.



Published originally on The Hill.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at https://www.blogger.com/blog/posts/2306123393080132994