powerboatr wrote: ↑Wed May 10, 2023 1:27 pm
a guy in news this morning somewhere in texas was stating governor has the legal authority to STOP all flow along the texas border, including inept federal agencies and take control.
I don't know that the statement, broadly represented as it is, is true. The national border is federal purview and while the state government has some measures that can be exercised--and I think Abbott has been doing so much that he's even been pushing that envelope--I don't believe there is any authority for a state to exercise the closure and enforcement thereof of a national border except under Article I, Section 10, Clause 3 of the Constitution.
I think the most recent precedent from SCOTUS was in 2012 with Arizona vs. the United States. The basic summary from that was that while the majority opinion struck down Arizona law imposing state penalties for certain immigration offenses (for example, AZ tried to make failure to comply federal alien registration a state misdemeanor and SCOTUS canned that and other things), in the end what remained was that the state had the right to check the immigration status of individuals they arrest, stop, or detain if they have a "reasonable suspicion" that they are in the country illegally. In other words, they couldn't be stopped or detained
just because they might be illegals; the state could only check their immigration status if they had already been stopped for some other reason that was a violation of state law.
What Abbott
can do (and is doing) in my admittedly limited understanding is mobilize state resources to increase enforcement of
state laws like trespassing, smuggling, human trafficking, evading arrest, etc., and to support the federal enforcement personnel
at their request. In other words, Texas has no jurisdiction to unilaterally arrest someone wading across a sand bar in the Rio Grande. Immigration is not a state crime. Texas personnel can't hold their rifles on the waders and order them to turn around or be arrested or shot.
In part that's why the Texas State Guard troops that were mobilized this week make it very, very clear in interviews that they are there
not in a military or direct enforcement capacity, but are there to assist any state law enforcement activities of the DPS and to assist the federal border control officers as requested. If DPS officers think something like smuggling or trespass on private land is happening, they can call in the Guard to help with enforcement. But basically the Guard is there in full gear load-out to look imposing.
Article I, Section 10, Clause 3 of the Constitution authorizes a state to act to protect its citizens who are under threat of "invasion or imminent harm." I think that's where the talk comes from that Abbott has legal authority to do more than he's doing. But in fact that language has precedent to show that its meaning is pretty literal: a
military style invasion and/or imminent
physical danger or harm. I'll buy that those points might be arguable when we're taking about 10,000+ illegals just traipsing across as they please every single day. But unless it's an armed mob or militia coming across, Article I doesn't give Abbott the authority to take action and usurp the federal mandate to manage and secure the national border.
Under the Constitution and federal law, Abbott has to work with one hand tied behind his back. Eventually, things he's already done--like bussing willing immigrants to New York and Chicago--may end up in lawsuits to be decided by SCOTUS. But Texas is expending a lot of resources and has a lot of personnel at the border...because Biden and the DHS won't do it.
If you traipse across that sand bar carrying nothing but some clothes and water and are being peaceful about it, even if Texas DPS
could legally arrest you, their only option then would be to turn you over to ICE or the Border Patrol which means, given Biden's catch-and-release program, that you would just be fed, processed, promise to report to a hearing months in the future, and be released back into the very community you were entering illegally anyway. And as of tomorrow and the end of Title 42, the chaos at the border is going to become a flat-out national nightmare.
Oh, and don't forget that while Mayorkas whines about not having any resources, his DHS got over $2 billion more in new funding under Biden than the department had under Trump. So, wow, if it's so bad now and DHS has a much
larger budget, the border crisis must have been positively insane during the Trump administration. Oh...wait a minute...
