Texas border counties are facing a migrant "invasion" and Gov. Greg Abbott, R-Texas, must expel people suspected of entering the U.S. illegally, local officials said.
Several local leaders and activists said Abbott would be justified to expel migrants because the Biden administration has failed to do so, the San Antonio Express-News reported.
Kinney, Goliad, Terrell, and Uvalde counties this week issued disaster declarations and called on Abbott to enforce federal immigration laws.
Kinney County Judge Tully Shahan was one of several county officials to declare a "local state of disaster" due to the surge in migrant border encounters.
"We don't want to lose America," Shahan said, the newspaper reported. "The Biden administration won't do a thing about it. They could stop this thing this hour. They could stop it now."
The officials said that human smugglers have been causing damage to property when they try to evade local law enforcement on their highways and county roads, the Texas Tribune reported. The sheriff's offices are overwhelmed by the amount of smuggling that has taken away from their other duties.
In April, Abbott said he had refused to expel migrants because he was concerned about legal consequences.
"There are federal laws that law enforcement could be prosecuted under if they were to take someone, without authority, and immediately return them across the border," Abbott said then.
Texas border counties' officials on Tuesday argued that President Joe Biden had given up the federal government's constitutional duty to defend states from invasion and "domestic violence."
Thus, the officials said, states have the constitutional right to protect themselves from "imminent danger."
Calls to invoke the U.S. and state constitutions to declare an invasion have been based on a legal theory promoted in February by Arizona Attorney General Mark Brnovich.
"The violence and lawlessness at the border caused by transnational cartels and gangs satisfies the definition of an 'invasion' under the U.S. Constitution, and Arizona therefore has the power to defend itself from this invasion under the Governor's authority as Commander-in-Chief," Brnovich wrote in a legal opinion.
"An actual invasion permits the State to engage in defensive actions within its own territory at or near its border."
Brnovich added that the Constitution's definition of invasion applied not only to hostile foreign states, but also to "hostile non-state actors."
Some legal experts, however, say that claiming a "border invasion" likely would violate both U.S. asylum laws and the legal precedent that gives the federal government authority to set and enforce immigration policy.
"The people coming are actively seeking to place themselves under the laws of the United States by seeking asylum," David Bier, the associate director of immigration studies at the libertarian Cato Institute, told the Express-News.
"So the idea that the first 'invasion' in the history of the world where invaders seek to subject themselves to the law of the country that they're invading — it's a total mischaracterization of what an invasion is."
In August, Abbott authorized the Texas National Guard to arrest people who illegally crossed the U.S.-Mexico border and violated state law. That came a month after ordering Guard members to assist the Texas Department of Public Safety in arresting illegal immigrants for breaking state laws.
Then in April, Abbott began sending migrants from Texas to Washington, D.C., after the Biden administration had transported immigrants to places around the United States.
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