Invasion or Evasion? Crisis at the Border is a Political, not a Constitutional Problem

Below is my column in the Hill on the effort to declare an “invasion” along the Texas border to allow the state to take greater control along the border to stem the flow of illegal immigrants. This week, Texas Gov. Greg Abbott signed an order allowing Texas law enforcement to return illegal immigrants apprehended in the state back to the U.S. border. The Biden Administration has already indicated that it will oppose such efforts. Whether such state enforcement is constitutional will be hashed out in the courts in light of the 2012 decision in Arizona v. United States.  Texas can legitimately raise the obligations of the federal government to protect the border under Article IV and even refer to this influx as an invasion in the colloquial sense. However, the argument that it constitutes an invasion in the constitutional sense would not be a compelling argument in federal court.

Here is the column:

“We’re being invaded.” Those words from Kinney County, Texas, Judge Tully Shahan this week were echoed by officials in three Texas counties, urging Gov. Greg Abbott (R) to declare an “invasion” of the state by illegal immigrants.

With 1.06 million encounters in just the first half of the 2022 fiscal year, it is hardly hyperbole. However, these officials are seeking a constitutional — not just a political — declaration. They are claiming an actual invasion in order to trigger the state’s right to self-defense in the face of inadequate federal enforcement.

Border arrests in May set a record for the country, with 239,416 illegal immigrants apprehended. Thousands of weapons and hundreds of millions of lethal doses of fentanyl have been seized, too, as border states begin to buckle under the rising crime and social-welfare costs.

While some federal border agents seem in open defiance, the Biden administration narrowly prevailed in the Supreme Court to stop the Trump-era “Stay in Mexico” policy, which could further increase these numbers.

From the states’ perspective, this was a deal-breaker. In debating the Constitution after its drafting in 1787, states were assured that ceding authority to a federal government would not only preserve their rights under a federalism system but would guarantee that they would be protected from invasion. That obligation was made plain in Article IV, Section 4, the so-called Guarantee Clause; it states in part that “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion.”

Article I, Section 10, Clause 3 of the Constitution bars states from conducting foreign policy or performing other federal duties, including the power to “engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

That language was not the manifestation of a new deal with the states. It was largely taken from the much-maligned Articles of Confederation. Despite wanting to strengthen the powers of a federal government, the Framers incorporated the original recognition that a state can always act in self-defense in the face of an invasion.

What constitutes an “invasion” in a colloquial sense is highly subjective. When Benedict Arnold took 1,600 men over the northern border into Canada in 1775, it was rightfully called an invasion. Yet when millions pour over the southern border, it is called lax enforcement.

The legal difference is obvious. One was an organized national force seeking to take over a country. The other is a collection of people from various nations seeking to join this country. Yet, for border states, the distinction easily can be lost in the costs and the crime associated with runaway illegal immigration.

It is clear that the Constitution’s references to “invasion” meant an organized foreign army. When the Constitution was ratified, the federal government had only a small regular army, and border states were legitimately concerned about an invasion by hostile foreign powers or their surrogates.

The failure at our border is a problem of competency rather than the Constitution. If “invasion” can be defined this broadly, any lack of border security could be defined as an invasion, from illegal drug imports to illegal gang activity.

In some respects, states are in a worse situation than when they ratified the Constitution. At that time, state legislatures controlled the composition of the U.S. Senate, which made senators far more responsive to state interests. That changed in 1913 with the direct election of senators under the 17th Amendment. States also once controlled most of the country’s tax revenue, giving them considerable power over the federal government. That ended with 16th Amendment giving Congress the right to impose income taxes.

On immigration, however, it became more difficult just ten years ago with the Supreme Court’s decision in Arizona v. United States, reaffirming federal authority to control borders and dictate immigration enforcement. During the Obama administration, states sought to enforce immigration laws after they claimed a lack of federal enforcement. While the state won the right to confirm immigration status in some cases, the Obama administration prevailed overall in swatting back state efforts to increase enforcement along the border.

Now, Arizona is trying again with a commitment of $564 million to secure its southern border, including border fence construction and improved technology, and plans to build a “virtual border wall.” It is not clear if this renewed effort will succeed in light of the 2012 decision, particularly given the absence of key details on enforcement.

Other options are equally daunting for states.

President Biden could reverse course and openly enlist states to expand enforcement; that seems unlikely given the increasingly hostile relationship between the administration and border states.

Or states could pressure Congress to change immigration laws to allow for greater state enforcement — but there are constitutional barriers to forcing a president to enforce particular laws under our separation of powers. Indeed, in this month’s ruling in Biden v. Texas, the court voted 5-4 that the administration had discretion not to maintain the Stay in Mexico policy even if it meant a greater infusion of undocumented persons. Justice Alito wrote for the dissenting justices in declaring that the Biden administration is ignoring the current law and “this practice violates the clear terms of the law, but the court looks the other way.” These justices do not view the border crisis as an invasion as much as an evasion of federal law.

Rather than trying to force President Biden to enforce these laws, Congress could seek to allow states to do so. Much of the 2012 ruling against Arizona was based on the preemption of state laws by federal immigration laws; the court ruled that states cannot create “an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Congress, however, could change those purposes and objectives by expressly allowing for state enforcement. Moreover, it can use the power of the purse to force a president to do so.

Otherwise, courts will view this as a political question to be addressed in the polling place, including the upcoming midterm elections. The public appears to transcend party lines in its opposition to the border crisis. A recent poll shows Biden’s approval on immigration at just 32 percent; even a majority of Latinos opposed the administration’s effort to dispense with Title 42 and the Stay in Mexico policy.

It is easy to understand the frustration of states which feel they are victims of a bait-and-switch from the 18th century. Yet if there is a case to be made for self-help, it is not to the courts but to the voters.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.

176 thoughts on “Invasion or Evasion? Crisis at the Border is a Political, not a Constitutional Problem”

  1. It does not take a rocket scientist to figure out that President Biden is not operating on full thrusters. His presidency is a disaster. He recently read the teleprompter instructions as part of his speech (that he obviously didn’t write).

    “End of quote” “Repeat line.”

    Our news media is, as usual, so focused on the bizarre “event of the day,” they fail to look beyond our ocean. The Dutch farmers are presently involved in protests against the E.U. mandates that will severely curtail production and livestock. The “great reset” agenda aims to put a third of the farmers out of business. The Netherlands is one of the top five food producers in the world, have the highest standards in the world. The brain trust of their knowledge is incalculable. There is also a punch there to overwhelm their immigration system.,

    Watch China’s attempt to take control of the Solomon Islands and set up military bases there. My father was in Guadalcanal and surrounding islands in World War 2. This is one of the most strategic locations to control the southern Asian shipping.

    There is a bigger agenda when one takes a bird’s eye view. I am not sure what it is yet, or who is running the show. I’ve played enough cards to get a feel that something is amiss.

    1. E.M. : I am a Christian. I believe that the devil is stirring up trouble worldwide for some massive future trouble which the world hasn’t seen before. Yes, World Wars I & II were horrible. The worst I fear is yet to come. I agree, something certainly is amiss.

  2. any democrats helping an Illegal…should be CHARGED WITH TREASON!

  3. Regardless of what this article is about or whatever: what we have going on at the southern border is a blatant attempt to change the country forever by allowing lawbreakers into the country who likely will never leave. Call it THE GREAT REPLACEMENT or anything you want. That is what is happening. I am old…and it is sad to see a once-great nation pushed around by the likes of Biden and Mayorkas. These two are the epitome of the belligerent, vocal minority.

  4. If Democrats can run two impeachment operations against Trump and fail, current trends should put Republicans in a position to impeach and remove Biden after the midterm elections. On what grounds?

    Pick one: violating his oath to uphold the Constitution, encouraging illegal migration at the southern border and ignoring the associated crime and drug trafficking that comes with it, harsh and destabilizing attacks on a co-equal branch of government that put lives of the Justices at risk, incompetence, negligence and disastrously poor leadership.

    Any one of the above are grounds for impeachment, but so is Biden’s obvious and growing cognitive decline. If impeachment is too radical for Republicans, invoking the 25th Amendment to remove a senile president is thoroughly justified and Americans will understand the reasons for it. Biden has become a living symbol of the country’s decline.

    1. “Biden has become a living symbol of the country’s decline.” That may seem true in that he is a symbol, but he represents the total control of our government (not counting the still viable SCOTUS), by silent and nefarious puppet masters whose goals are not in line with, or to the benefit of, the average American taxpaying citizen.

    2. Mike Hornbrook: While I wholeheartedly concur with removing Biden for cognitive decline, look who is in the wings waiting for that to happen. The Cackling One…ugh.

    3. All good points! It is abundantly clear that Joseph Robinette Biden has abrogated his oath to “faithfully execute…”. His decision-making is flawed (if he is making any decisions) and the administration is a disaster. If he were to be removed from office, the individuals in the line of succession would be Kamala Harris and Nancy Pelosi. Let’s hope that the midterm elections bring Republican victories that result in a new Speaker of the House!

  5. It’s interesting just how much harm it’s taken for a few counties and finally a state to drag themselves into begrudgingly declare that millions inviting their own little selves to enjoy free food, free housing, free education, free cash, and a free pass, is actually an invasion, of America, My America.
    The intent of an invasion is the conquest of a nation not your own.
    Before Trump had to street fight to shut most of it down this was an invasion under the watches of Obama, and Bush, and Clinton, and Bush1, and Reagan, and Carter, and Ford, and Nixon, and Johnson.
    Teddy said we wouldn’t notice the difference.
    Sounds a lot like I don’t matter much.

  6. Another excellent article, Professor!

    Perhaps repealing the 16th and 17th Amendments should be the next step after fixing the issue with the border.

  7. Jonathon cited Article I, Section 10, Clause 3 of the Constitution bars states from conducting foreign policy or performing other federal duties, including the power to “engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” The cartels are organizing these waves of people as a criminal enterprise to make money off them and drugs. What was the understanding of “or in such imminent Danger as will not admit of delay”? How does that understanding inform what States can do today?

  8. Simply put the illegal migrants are evading immigration law. These laws were passed by Congress and signed into law by the Chief Executive.

    Immigration law represents the will or intent of Congress. Therefore it is the Constitutional duty of the President as head of the Executive Branch to enforce the law. The Executive swears an oath to uphold the Constitution against all enemies foreign and domestic. Abandoning the enforcement of Federal law, in this instance immigration, is not an option. A policy either written or verbal not to enforce immigration law constitutes aiding and abetting, which in its self is a crime.

    Illegals pose both a significant safety and financial burden on state and local government. The large number of gang members present a threat to the safety of citizens. Similarly, human trafficking and the narcotics smuggling present a clear and present danger. Unfettered border crossing also presents a national security and health security threat.

    Examining health security. Illegal migrants can bring a number of diseases into the country due to the inability of the nations they are fleeing to provide adequate vaccinations or medical care. The result is a burden on states and localities to care for the sick

    From a national security viewpoint a policy of “open borders” permits not only criminals but terrorists to enter. Further, many illegals under the “catch and release” policy never show up for immigration hearing and disperse across the country. The present administration aids these individuals by providing bus or air transportation funded by the taxpayers. Adding insult to injury the administration does this undercover of night.

    The Executive Branch in failing to enforce immigration law has established a clear and present danger to the country. The Federal government has itself created a situation that requires the several states to attempt to control illegal immigration.

    For the first time in history Texas courts have decided that the massive daily influx of illegal immigrants constitute an invasion. This situation is not strictly a political or enforcement issue. Professor Turley argues that the term invasion set forth in the Constitution means an military operation across the border by a nation state. That is correct. However, the situation is a Constitutional one. The President, the Secretary of DHS and its agencies are refusing to enforce federal immigration law. That policy failure is a Constitutional issue, one that may constitute an impeachable offense for both the president and the secretary.

    1. “. . . failing to enforce immigration law . . .”

      What “law,” specifically?

      That is not an antagonistic question, but a sincere one.

      People keep talking about “illegal” immigrants, the existing immigration “laws,” etc. Yet I cannot find anywhere an explanation (let alone a definition) of the precise “law” they’re referring to.

      1. hey lazy Sam Defined under 8 U.S. Code § 1325, improper entry occurs when an individual enters, or even attempts to enter, the U.S. at a time or place that isn’t designated by immigration officers, avoids being inspected by immigration officers, or uses willfully untrue or misleading information in order to enter the U.S. under false pretenses.

        1. “. . . hey lazy Sam . . .”

          I should have known better than to ask a sincere question, on a blog with so many hostile commenters.

    2. It seems hard to say that the Biden Admin is not enforcing immigration law when the article cites a record number of arrests in May which is a type of enforcement. Keep in mind also that the amount, type, and quality of enforcement depends on the amount of funds appropriated by Congress and the conditions they impose on such funds.

  9. Your framing is muddled. You create a binary outcome: it’s either an invasion or an evasion. But the two are not mutually exclusive outcomes.

    Pudding Brain Brandon is EVADING his executive duties to faithfully execute the dully enacted laws to protect the borders from an illegal INVASION. Nowhere does the Constitution imply the invasion must be a military invasion.

    Nor is there reason to believe the states ratified the Constitution using your narrow interpretation of invasion as exclusively militaristic in nature.

  10. I’d love to see the border states obtain a Writ of Mandamus against the Federal Government to enforce the law regarding the border.

    1. If “invasion” meant an organized foreign army,” don’t the highly organized and well-armed cartels meet the definition? Woodrow Wilson thought Pancho villa represented an “organized foreign army” and sent Pershing and about 5000 troops to address the invasion. Villa had his own armed band and was not leading a Mexican army. And with the cartels, we’re not looking at a border incursion like Villa’s but an organized effort to build and sustain a drug/human trafficking network to control racketeering throughout the country. A Writ of Mandamus is a good idea to force the issue. Another writ would also be quite appropriate to counter a second outrage.

      I’d love to see the J-6 political prisoners obtain a Writ of Mandamus against various levels of government to enforce the 6th Amendment’s right of the imprisoned “to a speedy and public trial.”

    2. “. . . to enforce the law regarding the border.”

      What “law” are they failing to enforce? (A sincere question.)

      1. Hey Lazy Sam Defined under 8 U.S. Code § 1325, improper entry occurs when an individual enters, or even attempts to enter, the U.S. at a time or place that isn’t designated by immigration officers, avoids being inspected by immigration officers, or uses willfully untrue or misleading information in order to enter the U.S. under false pretenses.

  11. Sounds to me like there are ample grounds for impeachment. Does not the oath of office say “to preserve, protect and defend the constitution of the United Sates from all enemies, foreign and domestic”. As previous writers have mentioned there are highly organized groups invading the country as well as unorganized. In the days of asymmetrical warfare, one may have to consider a different definition of invasion. And act accordingly.

    1. Both parties support illegal immigration. Greg Abbot is running for re-election and is trying to score points with the public—which OPPOSES illegal immigration. Expect between one and two million more folks hanging around at your local Home Depot again this year.

    2. Based on your rationale, Trump should have been impeached a third time for not defending the constitution against domestic enemies like the proud boys and the oath keepers. They were armed and ready to take over the Capitol by force. Trump coordinated with them. The only reason it failed is because of pure incompetence and bad luck.

      1. The proud boys and oath keepers did not attack the constitution nor are the the countries enemies just because you have chosen to make them your enemies.

        No they were not armed and ready to take over the capital by force.

        Can we get passed stupid ?

        If they had been – they would have succeeded.
        The capital police and the FBI have both testified – nop firearms were used in the capital by protestors, and there is no evidence firearms were brought into the capital.

        There is evidence that about half a dozen people who have never been charged and are likely federal agents had handguns outside the capital.

        There is also evidence that a few people brought weapons to Washington with them – but did not bring them to the capital.
        The supreme court has just said that is constitutional.

        Regardless, stick to actual facts.

        1. John, et al:

          Ch’k Nazi Pelosi, Rep Adam Schiff, Deli Man, Mconnell, McCarthy, etc.,

          Schiff this week seems to have been busy obstruction justice by attempting to hiding evidence of their Coup They were running against the public by concealing it, stuffing all the evidence of NCIS involvement & other material facts into an unopenable yearly NADD bill.

          What’s in it, What’s the involvement of the NCIS, FBI, CIA & other US/Foreign INTEL Groups?

          What the hell is this for, Posse Comitatus Act???

          Why was Nazi Pelosi running Com’s through NCIS on/around J/6/2021????

          Yeah, it’s phk’in illegal in the US, but I guess it’s what the hell if they are in the middle of a Treasonous Coup against Our USA!!!

          1. Typo:

            It’s the NDAA & I also forgot to mention that Anti-American POS Trash Lindsey Graham. What the heck was his involvement in their Coup?

            The only thing that can save their treasonous Arses is if China & Russia nukes them before the American People find out what they’ve done to us.

          2. When democrats accuse you of something – it is near certain they are doing it.

      2. HOW is it that you think incompetence and bad luck lead to failure ?

        This is more Stupid collusion delusion nonsense.

        Something is true and really really bad – because I believe it. Not because there is actual evidence.

        The proud boys conspired to “occupy the capital” until they got a new election.

        Democratic protesters occupied the Wisconsin state capital in 2010 to thwart republicans from passing a law. They stayed for weeks.
        Republicans still passed the law. No one went to jail. No one was called an insurrectionist.

        Abortion protestors recently tried to occupy the AZ capital Still not an insurection.

        Do you have any actual values beyond hypocracy ?

    3. Impeachment is whatever a majority in Congress says it is.

      Trump was always irrefutably innocent, and the communists (liberals, progressives, socialists, democrats, RINOs) “impeached” him two times.

  12. “The legal difference is obvious. One was an organized national force seeking to take over a country. The other is a collection of people from various nations seeking to join this country.”
    Lots of ways to “join” a country. One is by taking over its native population and controlling it politically as the Dims have transparently sought to do. They can’t win the vote of the natives so they change the voters and in doing so dilute the natives political prerogatives in a sea of illegals. That’s an invasion by surrogates by anyone’s definition.

    1. No, that’s just a bat$!t crazy conspiracy theory peddled by racists and bigots. It’s people who can’t competent against a group with better work ethic and determination.

      1. “No, that’s just a bat$!t crazy conspiracy theory peddled by racists and bigots. It’s people who can’t competent against a group with better work ethic and determination.”
        I always know I’m winning when the opposition resorts to epithets and no counterarguments. Thanks, aninny.

    2. The Naturalization Act of 1802, immigration law in 1863, was in full force and effect compelling the compassionate repatriation of freed slaves.

      Naturalization Acts of 1790, 1795, 1798 and 1802 (four iterations, the Founders/Legislators meant it)

      United States Congress, “An act to establish an uniform Rule of Naturalization,” March 26, 1790

      Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof…

  13. Mr. Turley bypassed the Cartels who are an army with the intent of controlling territory within the border states thereby attaching our sovereignty. They make money, gain power and threaten our citizens via the Federal government ignoring our laws. Sounds like an invasion to me.

  14. I’d like to suggest a one for one trade. How often have you heard the Democrats disparage the nation, the constitution and threaten to leave the country, of course they never do. Meanwhile there are those around the world literally dying to enter this great nation. Let’s make a trade one Democrat exits (no re-entry) and entry and citizenship for one American loving immigrant.

    1. Margot: I’m not so sure these are all “America-loving immigrants”. They are coming here for stuff. They feds are happy to give them stuff. They come from countries where they weren’t getting free things and maybe not enough freedom. Like it or not, they have their collective hands out for NGOs and the government to fill. Are they all bad people? No, but from day one they are lawbreakers, but then so is the federal government for not upholding our immigration laws.

      1. Randy – Your correct and I agree. We certainly have enough of our own homegrown criminals and takers. I’m tired of those who threaten to leave if they don’t get their way but stay to create mischief. Our young are being lied to, used as pawns and if aren’t careful will be the ones getting exactly what they’re asking for. The past years have revealed a great deal of in your face government corruption and those who literally hate this country. Something must change.

  15. I continue to be amazed at the lack of concern by lefties at the border crisis.

    By an accident of geography, we are allowing in a population that is unlettered, from oligarchic societies, and only able to perform low level jobs.

    Yes, we benefit from immigration, but why aren’t those 2 million immigrants Indians (highest earnings of any ethnic group), Ukrainians (able to integrate quickly), or Filipinos (good language skills)?

    Lefties always focus on Trump, but he is in the rear view mirror.

  16. “It is clear that the Constitution’s references to “invasion” meant an organized foreign army.”
    This invasion is organized and migrants are coming from all over the world. In one of the caravans the migrants are holding up the flags of foreign nations. Of course you wouldn’t see this on the MSM, but this is a real invasion.

  17. When a court case comes up for trial we need to pay a cartel to have hundreds of illegal migrants to invade the courtroom. “Get off that bench!”

  18. I will simply ask: What is the purpose of passing federal laws if the federal government can willfully ignore those laws?

    1. I would disagree strongly with the professor! It is in fact an “ORGANIZED INVASION” by many different parties, namely leftist NGO’s, and finally by criminal organisations, ie: the Cartels! The invaders aren’t all armed with conventional weapons, but, are often the weapon themselves, causing destruction & chaos none the less. These invaders are controlled by the Cartels and used in further criminal activities.

    2. Why post speed limits when cops don’t stop every car that is clearly speeding, including themselves?

      1. That is right – Why ?

        If you are not going to enforce the law – do not have the law.

  19. Elections do have consequences. One of those consequences is that the people in power can use that power to adopt policies that will influence or dictate the outcomes of future elections. The Democrats largely rely on the votes of poor folks to whom they promise everything but deliver little. As those folks struggle to become middle-class, and recognize that they have been duped, the Democrats need to replenish their voting base. Hence their immigration policies.

  20. Unfortunately in this case, the political question doctrine cuts both ways. Someone needs to actually enforce the immigration laws as they apply to detaining those crossing illegally.

    1. It wouldn’t make a difference. How many times have we read about a foreign national who has been arrested for a serious crime, and the article states that he was previously deported three, four or five times? “Deportation” is a joke. It just means a free trip home, paid for by the U.S. taxpayer, then he turns around and comes back.

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