By ACACIA CORONADO and PAUL J. WEBER – Associated Press
SAN ANTONIO (AP) — Former Trump administration officials are pushing Texas Gov. Greg Abbott to declare an “invasion” along the U.S.-Mexico border and give thousands of state troopers and members of the National Guard broad authority to return migrants, essentially granting enforcement powers that have been federal purview.
The concept is legally dubious, nearly unprecedented and almost certain to face swift court challenges, according to some constitutional experts.
The insistence comes as the Republican governor prepares to announce “unprecedented actions” on Wednesday to deter immigrants from coming to Texas. The move came in response to the Biden administration’s announcement last week end the use of a public health law that has limited asylum in the name of preventing the spread of COVID-19.
It’s unclear whether Abbott, who is running for re-election in November and is already putting up more border barriers and allow soldiers to arrest immigrants on trespassing charges, supports the aggressive proposals being pushed by former Trump officials. Abbott did not elaborate on what steps he will announce on Wednesday.
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Border Patrol officials say they are planning for as many as 18,000 daily arrivals once the health policy, known as the Title 42 authority, expires in May. In the past week, about 7,100 migrants came a day to the US southern border
But as former Trump immigration officials see it, Texas and Arizona can pick up where the federal government leaves off once the policy ends. His plan involves a novel interpretation of the US Constitution for the National Guard or state police to forcibly send migrants to Mexico, disregarding immigration laws and enforcement procedures. the law. Border enforcement has always been a federal responsibility, and in Texas, state leaders have not been pushing for such a move.
Tom Homan, a former acting director of Immigration and Customs Enforcement under Trump, said at a border security conference in San Antonio last week that he had talked to Abbott about the idea.
“We’ve had discussions with your attorneys in your office, ‘Is there a way to use this clause within the Constitution where it talks about trespassing?’” Homan said during the Border Security Expo.
Homan said those talks took place about three months ago, and on Tuesday described the governor’s office as “noncommittal but willing to listen.”
In Arizona, Republican Governor Doug Ducey he has also been under pressure within his party declare that the state is being invaded and use extraordinary powers normally reserved for war. But Ducey, who is term-limited and not on the 2022 ballot, has not bought into the theory and has avoided commenting on it directly.
Arizona Attorney General Mark Brnovich, a Republican, issued a legal opinion in February declaring that Ducey has the power to use National Guard troops and state law enforcement to forcibly send immigrants. Brnovich is locked in a tough Republican US Senate primary in which border security is a major issue.
Driving the right-wing effort is the Center for Renewing America, a conservative policy think tank run by former Trump administration officials. It includes Ken Cuccinelli, an immigration hardliner and former Homeland Security official under Trump. He argued that states have the right to defend themselves from immediate danger or invasion, as defined in the “invasion clause”, under the “self-defense clause of states”.
While speaking Tuesday on a conservative radio station, Abbott’s comments about constitutional authority were related to Congress, which he said had the sole power to slow the flow of immigrants.
“We will take unprecedented action,” Abbott told radio station KCRS. “Congress has to stop talking about it, it has to stop complaining, it has to stop going to the border and looking at it. Congress has to take action, just like Texas is taking action.”
Asked if he considered what was happening at the Texas border “an invasion,” Abbott didn’t use those words, but said he would discuss it on Wednesday.
Cuccinelli said that, in practice, he envisions the plan would be similar to the application of Title 42, which circumvented US obligations under US law and the international treaty to provide asylum. He said he hasn’t spoken to Abbott and said the governor’s current border sweep mission, known as Operation Lone Star, has taken a toll on the number of people crossing the border. The mission has also drawn criticism from Guardsmen for long deployments and little to do, with some arrests appearing to have no connection to border security.
“Until he’s sending people back to Mexico, what he’s doing won’t have any effect,” Cuccinelli said.
Emily Berman, who teaches constitutional law at the University of Houston, said the “invasion clause” cited by advocates is embedded in a broader constitutional guarantee that the US must defend states from invasion and violence. domestic. In addition, she said, the “state self-defense clause” says that states cannot engage in warfare or foreign policy unless they are invaded.
Berman said he hasn’t seen the constitutional clauses used since the 1990s, when courts ruled they had no jurisdiction to decide what qualified as an invasion, but believed only another government entity could.
For example, Berman said, Russia’s invasion of Ukraine can qualify as such because it is a foreign government violating the borders of another country with the use of military force.
“Just because the state says it’s trespassing doesn’t necessarily mean it is, it’s not clear to me what additional legal authority it gives them,” Berman said, adding that state officials can enforce state laws, but the line is drawn to the extent permitted by federal law.
U.S. Representative Henry Cuellar, a Democrat whose district includes the Texas border, has criticized the Biden administration over border security and ending Title 42. But he does not support states trying to use new powers that allow them to “do what they want”.
“I think it should be more of a partnership instead of saying, ‘Federal government, we don’t think you’re doing enough, and why don’t we go ahead and do our own border security?’” he said.
Coronado is a staff member for the Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercover issues. Associated Press reporter Jonathan J. Cooper in Phoenix and Nomaan Merchant in Washington contributed to this report.
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