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January 29, 2024

The Abbott-Biden Mexican Standoff

Texas Governor Greg Abbott is standing his ground against the president’s border malfeasance, but is the law on his side?

It is undeniable that the current migrant crisis, which has allowed in upwards of 10 million illegal aliens since Joe Biden took office, is nearly entirely of his own making, thanks to his de facto open-border policy.

The Biden administration initially denied there was a crisis despite blatant evidence to the contrary and then argued it was contained. Meanwhile, the number of migrants illegally crossing the southern border continues to set record after record. December set a new record for illegal border crossings with more than 371,000 illegal immigrants encountered.

Ergo, border states like Texas have sought to press the Biden administration into enforcing our nation’s immigration and border laws. This included Texas Governor Greg Abbott’s migrant busing policy to Democrat-run “sanctuary” cities like Chicago and New York. This practice has highlighted to Democrat voters the severity of the problem, yet the Biden administration has stubbornly refused to reverse course, as illegal aliens continue to pour into the country.

The Biden administration’s unwillingness to secure the border provoked Abbott to take action, which has escalated into the current standoff.

Despite the U.S. Supreme Court handing Biden a legal victory regarding the removal of razor wire Abbott had set up along the border, the governor has refused to back down.

“The federal government has broken the compact between the United States and the States. The Executive Branch of the United States has a constitutional duty to enforce federal laws protecting States, including immigration laws on the books right now,” Abbott argues. “President Biden has refused to enforce those laws and has even violated them. The result is that he has smashed records for illegal immigration.”

It’s undeniable that the Biden administration has engaged in a policy of malfeasance by refusing to enforce federal laws designed to protect the nation. The question is, does Texas have the authority to step in and do what the federal government refuses to do?

Naturally, Democrats say “No” and have even called on Biden to seize control of the Texas National Guard — something he has no authority to do.

Abbott points to Article IV, § 4, and Article I, § 10, Clause 3, of the U.S. Constitution to justify his position. The significant point is the stipulation that the federal government “shall protect each [State] against invasion,” while it also notes “the States’ sovereign interest in protecting their borders.” Abbott contends:

James Madison, Alexander Hamilton, and the other visionaries who wrote the U.S. Constitution 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. The failure of the Biden Administration to fulfill the duties imposed by Article IV, § 4 has triggered Article I, § 10, Clause 3, which reserves to this State the right of self-defense.

For these reasons, I have already declared an invasion under Article I, § 10, Clause 3 to invoke Texas’s constitutional authority to defend and protect itself. That authority is the supreme law of the land and supersedes any federal statutes to the contrary. The Texas National Guard, the Texas Department of Public Safety, and other Texas personnel are acting on that authority, as well as state law, to secure the Texas border.

So, is Abbott standing on solid legal ground? Constitutional scholar Jonathan Turley is sympathetic toward Texas, but he thinks it will be a difficult argument to make. According to Turley, the crux of the issue is the definition of “invasion.” As Turley notes: “Federal courts are unlikely to agree that this is the invasion referenced in the Constitution. … Certainly looking at hundreds of thousands of people crossing and effectively open border presents an imminent danger. But the courts are likely to define that in the context of that provision, in the context of an invasion by it, as with a foreign state.”

That said, Abbott’s position received support after it came to light that 10 former FBI executives who headed the bureau’s intelligence, counterterrorism, criminal, and training operations sent a letter to House Speaker Mike Johnson on January 17 equating the mass influx of young military-age men into the U.S. from nations hostile to America to an invasion. The letter states in part, “It would be difficult to overstate the danger represented by the presence inside our borders of what is comparatively a multi-division army of young single adult males from hostile nations and regions whose background, intent, or allegiance is completely unknown.”

Meanwhile, Biden has responded to the standoff by playing politics. He says that he will only get tough on the border if Congress passes new immigration legislation that specifically hands the executive more enforcement power. “It would give me, as president, a new emergency authority to shut down the border when it becomes overwhelmed,” Biden declared. “And if given that authority, I would use it the day I sign the bill into law.” Never mind that he has steadfastly refused to enforce the current laws on the books.

This is as it always has been with the Democrats — a perennial issue designed to allow them to leverage a crisis to gain more political power. There would be no border crisis if Biden had simply enforced the law.

Instead, Biden finds himself in a Mexican standoff with not only Texas but also 25 other Republican-led states.

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