This could be huge news: Texas Governor Greg Abbott has summoned the National Guard and the Texas Department of Public Safety to repel the invasion of Texas from its southern border. Abbott invokes the Invasion Clauses of the U.S. and Texas Constitutions:
I invoked the Invasion Clauses of the U.S. & Texas Constitutions to fully authorize Texas to take unprecedented measures to defend our state against an invasion.
I'm using that constitutional authority, & other authorization & Executive Orders to keep our state & country safe: pic.twitter.com/2Jt5HEMgp5
— Greg Abbott (@GregAbbott_TX) November 15, 2022
Some notable points:
* Texas will build its own border wall.
* I love the reference to gun boats.
* Abbott contemplates entering into one or more compacts with other states to deal with the invasion.
* He also intends to “enter into agreements with foreign powers to enhance border security.”
I believe by the “Invasion Clause” of the U.S. Constitution, Abbott means Section 4 of Article IV, which provides:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
Article IV of the Texas Constitution bestows powers on the governor of that state. Article IV, Section 7 provides:
GOVERNOR AS COMMANDER-IN-CHIEF OF MILITARY FORCES. He shall be commander-in-chief of the military forces of the State, except when they are called into actual service of the United States. He shall have power to call forth the militia to execute the laws of the State, to suppress insurrections, and to repel invasions.
At first look, I think Abbott is on solid ground under the Texas Constitution. I assume the relevance of the U.S. Constitution is that the federal government has breached its duty to protect Texas against invasion.
I think Abbott’s long-overdue move has the potential to generate a crisis of federalism. Immigration is constitutionally regulated by the federal government, but the federal government has not only failed to enforce its own laws, it has deliberately encouraged the violation of those laws on a massive scale. States like Texas have been left holding the bag. When the federal government abdicates its constitutional duties, and actively tries to undermine the constitutional framework, does a state have the right to step in? One would think so, but the Biden administration no doubt disagrees.
Can a state enter into an agreement with a foreign government? I don’t know. The concept seems extraordinary. No doubt legal scholars will enlighten us.
We have been on a collision course between ever-expanding but incompetently applied federal power on one hand, and the interests and powers of sovereign states like Texas and Florida on the other hand, for a while now. Fundamental issues of federalism like those posed by Abbott’s orders need to be resolved. I hope they are resolved in favor of the states. As I have written before, given the bitterly divided condition of our populace, the alternative to a renewed commitment to federalism may be disunion.
Perhaps Governor Abbott’s declaration will turn out to be a historic step toward restoring the Founders’ constitutional vision.
[Update] A friend whom I won’t identify but who may be known to you as the In___ Pun__ answers my question:
States are forbidden from making treaties with other nations (or each other) by Article I Section 10.
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