Abbott invokes ‘invasion clause’ against cartels, traffickers

Gov. Greg Abbott visits Waco prior to the midterm elections to discuss his campaign goals with voters. Katy Mae Turner | Photographer

By Caitlyn Meisner | Staff Writer

Gov. Greg Abbott announced Tuesday he would be invoking the invasion clauses of the U.S. and Texas Constitutions to allow the state to deploy the National Guard, build a border wall and provide resources for border counties.

In his Twitter announcement, Abbott said he invoked these clauses to authorize the state of Texas to take “unprecedented measures to defend [the] state against an invasion.”

With the invasion declared, Abbott said he wants to deploy the National Guard and the Texas Department of Public Safety, designate Mexican drug cartels as foreign terrorists, provide resources for border counties and enter into a compact with other states to further secure the border.

The invasion clauses Abbott is referring to are Article I, Section 10, of the U.S. Constitution and Article 4, Section 7, of the Texas Constitution, which states that the governor is the commander-in-chief of the military forces of Texas, except when the U.S. military calls them to service.

“[The governor] shall have power to call forth the militia to execute the laws of the State, to suppress insurrections and to repel invasions,” Article 4, Section 7, of the Texas Constitution reads.

Abbott said in a Nov. 14 letter to county judges that he is urging Texas representatives to remind the federal government of its commitment to and responsibility at the border. He said the state should be reimbursed by the federal government for the $4 billion spent securing the border.

This letter comes after 33 counties — as of Oct. 5 — declared invasions on their respective counties from the southern border. Some of these counties include Burnet, Hamilton, Jasper, Terrell and Wichita.

Abbott sent a letter to President Joe Biden on Nov. 16, begging him to act to protect the border. He cited existing laws for Biden to enforce in the letter.

“Your open-border policies are the sole cause of Texas having to invoke our constitutional authority to defend ourselves,” Abbott said in the letter. “You must reinstate the policies that you eliminated in order to fulfill your constitutional duty to protect the States against invasion.”

Greg White, legal writing lecturer at Baylor Law School, said this declaration can mean whatever Abbott wants it to mean.

“There is nothing that tells you what to do when there is an invasion,” White said. “There is no limitation as to what constitutes an invasion in either Constitution. It’s wholly within the decision of the state.”

White also said the federal government would have difficulty suing the state of Texas for this declaration.

“The Supreme Court would be deciding a political question if they got involved,” White said. “The federal government would have to prove there is no invasion. This is hard to do under the circumstances and would be a bad decision for the federal government to argue that this stuff ‘isn’t really that bad.'”

White also said the invasion taking place is not of regular immigrants, but rather of cartels and those trafficking drugs or humans across the border.

Dr. Pat Flavin, Bob Bullock professor of political science, said he thinks this is a political statement, not a change in policy.

“It’s too early to tell, so we have to wait and see what happens,” Flavin said. “It’s undeniable there’s some political motivation to it.”

Flavin also said if there were more resources to be allocated, they would likely be taken from somewhere else in the state.

“There are trade-offs from resources being diverted from somewhere else,” Flavin said. “If this is an imminent threat, what resources are going to be pulled from other areas?”