Undocumented immigrants aren’t the same as an invading army, but the Texas governor keeps acting like they are.
The Supreme Court ruled Monday that Border Patrol agents could cut the concertina wire that Texas placed along the U.S.-Mexico border to block migrants from entering the state, adding new fuel to an ongoing conflict between Republican Gov. Greg Abbott and the Biden administration.
Texas has continued to place razor wire along the border, and now 25 Republican governors—every Republican governor in the country, except for Vermont’s Phil Scott—are backing Abbott’s actions. The governors issued a joint statement expressing support for Texas „utilizing every tool and strategy, including razor wire fences, to secure the border.“
The governors and Abbott claim that states have a „right of self-defense“ under Article 4, Section 4 of the Constitution (which guarantees that the federal government will „protect each [state] against Invasion“) and Article 1, Section 10, Clause 3 (which allows states to „engage in War“ if „actually invaded,“ which Abbott says gives Texas the „constitutional authority to defend and protect itself“).
This argument misunderstands the long-established legal and practical definitions of an „invasion.“ It also misconstrues the nature of unauthorized migration.
James Madison and other drafters of the Constitution, Abbott argued, „foresaw that States should not be left to the mercy of a lawless president who does nothing to stop external threats like cartels smuggling millions of illegal immigrants across the border.“ But „those who cite Madison in support of equating immigration and invasion ignore the one time he directly addressed this very question,“ writes the George Mason University law professor Ilya Somin at The Volokh Conspiracy, a group blog hosted by Reason.
