Biden administration orders Texas to stop obstructing federal agents at Eagle Pass park
Original article here.
AUSTIN — The U.S. Department of Homeland Security has given Texas until Wednesday to allow Border Patrol agents access to the Rio Grande through a state-controlled city park in Eagle Pass after the federal government blamed the drowning deaths of three migrants on state officials.
The cease-and-desist letter, sent Sunday to Texas Attorney General Ken Paxton, ordered the state to stop blocking Border Patrol agents from entering Shelby Park. If the state refuses, the Biden administration will ask the Justice Department to intervene.
“Texas’s failure to provide access to the border persists even in instances of imminent danger to life and safety,” wrote Jonathan E. Meyer, general counsel for Homeland Security. “Texas’s actions are clearly unconstitutional and are actively disrupting the federal government’s operations.”
The friction between the state and federal governments over border security operations has escalated since Wednesday, when the state took control of Shelby Park — an almost 50-acre site on the banks of the Rio Grande — over the objections of Eagle Pass’ Democratic mayor.
The tensions, which have reached the U.S. Supreme Court, escalated after the Biden administration blamed the drownings of three migrants, including two children, on state officials for denying Border Patrol the ability to save the group while in distress on Friday.
The Texas Military Department and state officials insist that soldiers did not deny Border Patrol access to the park. The state’s military agency also disputed the timeline of the drownings.
In a statement Sunday night, the Texas Military Department said it was “inaccurate” that Border Patrol agents requested access to the park to rescue the migrants, adding that it’s “wholly inaccurate” that soldiers refused to let Border Patrol save the migrants.
“At the time that Border Patrol requested access, the drownings had occurred, Mexican Authorities were recovering the bodies, and Border Patrol expressed these facts to the TMD personnel on site,” the statement said.
The military department’s timeline is different from the timeline put out by U.S. Rep. Henry Cuellar, D-Laredo, who announced the drownings on Saturday.
Cuellar said Border Patrol agents told members of the Texas Military Department that migrants were “in distress” around 9 p.m. Friday. Soldiers with the Texas Military Department told the federal agents that they would not “grant access” to the migrants, Cuellar’s statement said.
The Department of Homeland Security, which oversees Border Patrol, did not immediately respond to an email asking if the military’s Sunday statement was accurate.
Abbott on Sunday blamed the drownings on the Biden administration and accused Cuellar and journalists of inaccurate reporting.
The drownings had already occurred and the bodies recovered on the Mexican side of the river when Border Patrol agents requested access to the river, Abbott said, blaming the deaths instead on “Biden’s Open Border magnet.”
"The time for war has not yet come, but it will come and that soon, and when it does come, my advice is to draw the sword and throw away the scabbard." Gen. T.J. Jackson, March 1861
Re: Biden orders Texas to stop
[Re: ConSigCor]
#180508 01/25/202411:08 AM01/25/202411:08 AM
The Supreme Court has ruled that Texas may not interfere with federal agents. Now, Abbot has doubled down saying he will put up more fence because Texas has the absolute right to defend its border. The governor's of Oklahoma, Arkansas and Florida have declared that they stand with Texas.
Shades of 1860.
"The time for war has not yet come, but it will come and that soon, and when it does come, my advice is to draw the sword and throw away the scabbard." Gen. T.J. Jackson, March 1861
Back in 1957 when Arkansas Gov. Orval Faubus defied the Supreme Court, Eisenhower sent in the.101st Airborne. But Biden sure as heck ain't no Eisenhower.
Abbott: Texas Has Constitutional Right To Defend Its Borders From Invasion, Supersedes All Federal Law
Original article here.
Texas Governor Greg Abbott issued a defiant statement on Wednesday pushing back against President Joe Biden’s attempts to stop Texas from securing its borders against the millions of illegal aliens pouring into the state thanks to Biden’s reckless border policies.
Abbott’s statement comes after the U.S. Supreme Court sided with the Biden administration earlier this week, ruling that it could remove or cut through razor wire the state has deployed to stop illegal aliens from crossing the Rio Grande into the state.
“President Biden has violated his oath to faithfully execute immigration laws enacted by Congress,” Abbott said. “Instead of prosecuting immigrants for the federal crime of illegal entry, President Biden has sent his lawyers into federal courts to sue Texas for taking action to secure the border.”
“President Biden has instructed his agencies to ignore federal statutes that mandate the detention of illegal immigrants. The effect is to illegally allow their en masse parole into the United States,” he continued, adding: “By wasting taxpayer dollars to tear open Texas’s border security infrastructure, President Biden has enticed illegal immigrants away from the 28 legal entry points along this State’s southern border—bridges where nobody drowns—and into the dangerous waters of the Rio Grande.”
The governor noted that more than 6 million illegal aliens have entered Texas through its southern border under the Biden administration, a number greater than the population of 30 U.S. states.
Abbott continued:
James Madison, Alexander Hamilton, and the other visionaries who wrote the U.S. Constitution foresaw that States should not be left to the mercy of a lawless president who does nothing to stop external threats like cartels smuggling millions of illegal immigrants across the border. That is why the Framers included both Article IV, § 4, which promises that the federal government “shall protect each [State] against invasion,[“] and Article I, § 10, Clause 3, which acknowledges “the States’ sovereign interest in protecting their borders.” Arizona v. United States, 567 U.S. 387, 419 (2012) (Scalia, J., dissenting).
Abbott said that Biden’s failures to secure the border “imposed by Article IV, § 4 has triggered Article I, § 10, Clause 3, which reserves to this State the right of self-defense.”
“For these reasons, I have already declared an invasion under Article I, § 10, Clause 3 to invoke Texas’s constitutional authority to defend and protect itself,” he concluded. “That authority is the supreme law of the land and supersedes any federal statutes to the contrary. The Texas National Guard, the Texas Department of Public Safety, and other Texas personnel are acting on that authority, as well as state law, to secure the Texas border.”
The Hill @thehill Rep. Joaquin Castro is calling on President Biden to take control of the Texas National Guard if the state defies a Supreme Court ruling that allows U.S. Border Patrol officers to take down the border barriers. https://trib.al/ctDARj9
Last edited by ConSigCor; 01/25/202405:14 PM.
"The time for war has not yet come, but it will come and that soon, and when it does come, my advice is to draw the sword and throw away the scabbard." Gen. T.J. Jackson, March 1861
When is unauthorized immigration an invasion? Never. None other than James Madison answered that question, way back in 1800.
Don't get me wrong, if you're going to have a "nation," then you have to have a border. But Gov. Abbottt is using some pretty tortured logic when he calls it an "invasion."
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The Supreme Court ruled Monday that Border Patrol agents could cut the concertina wire that Texas placed along the U.S.-Mexico border to block migrants from entering the state, adding new fuel to an ongoing conflict between Republican Gov. Greg Abbott and the Biden administration.
Texas has continued to place razor wire along the border, and now 25 Republican governors—every Republican governor in the country, except for Vermont's Phil Scott—are backing Abbott's actions. The governors issued a joint statement expressing support for Texas "utilizing every tool and strategy, including razor wire fences, to secure the border."
The governors and Abbott claim that states have a "right of self-defense" under Article 4, Section 4 of the Constitution (which guarantees that the federal government will "protect each [state] against Invasion") and Article 1, Section 10, Clause 3 (which allows states to "engage in War" if "actually invaded," which Abbott says gives Texas the "constitutional authority to defend and protect itself").
This argument misunderstands the long-established legal and practical definitions of an "invasion." It also misconstrues the nature of unauthorized migration.
James Madison and other drafters of the Constitution, Abbott argued, "foresaw that States should not be left to the mercy of a lawless president who does nothing to stop external threats like cartels smuggling millions of illegal immigrants across the border." But "those who cite Madison in support of equating immigration and invasion ignore the one time he directly addressed this very question," writes the George Mason University law professor Ilya Somin at The Volokh Conspiracy, a group blog hosted by Reason. Madison did so in "the Report of 1800, which rebutted claims that the Alien Friends Act of 1798 (which gave the president broad power to expel non-citizens) was authorized by the Invasion Clause."
"Invasion is an operation of war," declared Madison. "To protect against invasion is an exercise of the power of war. A power therefore not incident to war, cannot be incident to a particular modification of war. And as the removal of alien friends has appeared to be no incident to a general state of war, it cannot be incident to a partial state, or a particular modification of war."
"Every court that has reviewed the question" of what qualifies as an invasion has interpreted it as "an 'armed hostility from another political entity,'" wrote the Cato Institute's David J. Bier for Reason in 2021. In 1996, California made the same argument as Abbott, saying that the federal government had failed to protect it against an "invasion" of "illegal aliens." But the U.S. Court of Appeals for the 9th Circuit rejected that: "Even if the issue were properly within the Court's constitutional responsibility, there are no manageable standards to ascertain whether or when an influx of illegal immigrants should be said to constitute an invasion." Besides, the 9th Circuit said, California ignored Madison's conclusion in Federalist No. 43 that the Invasion Clause affords "protection in situations wherein a state is exposed to armed hostility from another political entity."
This is where Abbott runs into another issue: Undocumented immigrants bear little resemblance to an invading foreign army. Despite the constant invocations of "military-age" men crossing the border (the fearmonger's favorite way of saying "young men"), there has also been a historic influx of migrant families. Large groups of border crossers marching through the Sonoran Desert or trudging across the Rio Grande may make good footage for media outlets intent on fearmongering, but the overwhelming majority are coming here for economic or humanitarian reasons, not to commit crimes or sow chaos.
What brings chaos is a lack of legal immigration pathways. When pandemic-era border restrictions were in effect, barring the vast majority of migrants from seeking asylum, "gotaways" (those who successfully avoided arrest by Border Patrol) were their highest since 2005. The gotaway rate fell by half once the Title 42 border order ended. According to a National Foundation for American Policy brief last year, "100 years of Border Patrol apprehensions data" indicate that "none of the three U.S. periods with a significant decline in illegal immigration were due to enforcement policies."
By and large, people are happy to go through the legal immigration process if the steps are clear and accessible—but right now, they tend not to be. It's up to Congress to pass immigration reforms that recognize these realities. Abbott's misrepresentation of the Constitution does nothing to help.
Over 8 million unvetted people have illegally entered the country in the past 3 years. That's an invasion. We can't afford to take care of our own people. Many, if not most of these people aren't coming here to assimilate, they're coming to take all they can get. Close the border and deport ALL of them.
‘The Country Has Been Invaded’: Former FBI Officials Issue Grave Warning On Biden’s Open Border
Original article here
Ten former FBI officials signed a letter describing the present danger the U.S. faces from President Joe Biden’s border policy and raising serious concerns about a “specific threat that may be one of the most pernicious ever to menace the United States.”
The letter was signed last week and sent to leaders in the House and Senate before it was shared by Sen. Ron Johnson (R-WI) on Thursday. In it, the former FBI officials address a “new and unfamiliar” threat facing the country as “military aged men from across the globe” easily enter the U.S. “across a border that has been accurately advertised around the world as largely unprotected with ready access.”
“It would be difficult to overstate the danger represented by the presence inside our borders of what is comparatively a multi-division army of young single adult males from hostile nations and regions whose background, intent, or allegiance is completely unknown,” the letter states.
“In light of such a daunting, unprecedented penetration by uninvited foreign actors, it is reasonable to assert that the country possesses dramatically diminished national security at this time,” the letter continues. “The nation’s military and laws and other natural protective barriers that have provided traditional security in the past have been thoroughly circumvented over the past three years.”
The FBI officials’ letter was shared as the fight between Texas and the Biden administration over border security is heating up. Earlier this week, the U.S. Supreme Court authorized federal agents to cut through razor wire that was put in place by Texas authorities to repel migrants from illegally entering the country. Then, Texas Governor Greg Abbott issued a statement on Wednesday, vowing to secure the southern border and uphold “Texas’s constitutional authority to defend and protect itself” as Texas authorities continued to install razor wire along the southern border.
The former FBI officials added that it is “particularly alarming” in light of the October 7 Hamas attack on Israel that hundreds of illegal immigrants apprehended by Border Patrol were on the terrorist watchlist. Since Fiscal Year 2021, 294 suspected terrorists have been apprehended at the southern border, and in Fiscal Year 2023 alone, CBP arrested 598 known gang members who crossed into the U.S., according to the Department of Homeland Security.
The letter warned that a terrorist attack on U.S. soil “in imitation of 10/7” should be “considered a distinct possibility.” The FBI officials added that while “the warning lights are blinking,” there has been “little discussion … highlighting unsecured borders as a significant cause of this increasingly dangerous environment.”
“The country has been invaded, an invasion that will continue as long as the nation’s enemies perceive it will be tolerated,” the letter concluded. “Until it is stopped the United States is extraordinarily less safe and secure. Knowing all of this, it would be a shameful travesty if some terrible attack, a preventable attack, were to occur against innocent Americans or the infrastructure that keeps the nation safe and functioning. The government will have failed grievously in its duty to protect.”
Signatories of the letter included Kevin Brock, Chris Swecker, Timothy Healy, Ruben Garcia Jr., Mark Morgan, David Szady, Jody Weis, David Mitchell, William Gavin, and Timothy McNally. The letter was addressed to House Speaker Mike Johnson (R-LA), Senate Majority Leader Chuck Schumer (D-NY), House Select Committee on Intelligence Chair Mike Turner (R-OH), Senate Select Committee on Intelligence Chair Mark Warner (D-VA), Committee on Homeland Security Chair Mark Green (R-TN), and Senate Committee on Homeland Security and Governmental Affairs Chair Gary Peters (D-MI).
"The time for war has not yet come, but it will come and that soon, and when it does come, my advice is to draw the sword and throw away the scabbard." Gen. T.J. Jackson, March 1861
Biden Doesn’t Have Any Legal Authority to Seize Control of Texas National Guard
Hans von Spakovsky / @HvonSpakovsky / January 27, 2024
Texas Democratic politicians, such as Rep. Joaquin Castro and failed gubernatorial and Senate candidate Beto O’Rourke, are urging President Joe Biden to seize control of the Texas National Guard, which Republican Gov. Greg Abbott has mobilized to help secure the Texas border.
Abbott did so in the face of the deliberate and intentional inaction by the Biden administration to make sure the border stays open so millions of illegal aliens could continue to flood across from Mexico.
Under the circumstances, any such move by the president would be an abuse of the applicable law.
A number of federal statutes govern the National Guard, which is the modern equivalent of state militias and a reserve component of our military. Under 10 U.S.C. § 12301(a), the secretary of defense (and thus the president) is given the authority in “time of war or of national emergency declared by Congress, or when otherwise authorized by law” to order National Guard units to active duty.
But they cannot be called to active duty by the president “without the consent of the governor of the State.” If the governor consents, the unit called into federal service under Title 10 reports to the president as the commander in chief while in federal service.
State governors, however, like Abbott, remain the commanders in chief of their state National Guard units, such as the Texas National Guard, unless they have consented to the president’s call for those units to be in active federal service.
The only exception to the consent requirement is contained in subsection (f) and it only applies if National Guard units are needed for active duty for overseas service—such as when we were in the Iraq and Afghanistan wars.
Thus, under this statute, without the consent of Abbott, Biden has no power to simply seize control of the Texas National Guard as he is being urged to do and order them to stand down, since we are not in a war and the Guard is not needed for service abroad.
Biden could go to the extreme by trying to use the Insurrection Act of 1807 to take over the Texas National Guard. The Insurrection Act authorizes the president to federalize the National Guard under certain narrow and exceptional circumstances. The last time it was invoked was by President George W. Bush to help quell the deadly widespread riots in 1992 in Los Angeles after the arrest and beating of Rodney King, when state authorities were unable to cope with the violence and mayhem.
Under 10 U.S.C. § 252, the president can “call into Federal service the militia of any State” when “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any state by the ordinary course of judicial proceedings.”
Clearly, there is no insurrection going on in Texas as defined in that law.
Nor is Texas violating any court order issued in “the ordinary court of judicial proceedings.” The state has been placing barbed-wire fencing on state-owned and private property, and no court has ordered Texas to remove or cease installing that fencing.
The only thing that has happened is that the U.S. Supreme Court vacated—while the case between Texas and the federal government is on appeal—an injunction that prevented the feds from removing the fencing. But nothing prevents Texas from continuing to put in more fencing, even after it has been removed.
Biden would also be hard-pressed to legitimately use another part of the Insurrection Act, 10 U.S.C. § 253, which allows a president to use a state militia (the National Guard) if an insurrection or domestic violence “hinders the execution of the laws of that State, and of the United States.”
It is Texas that is trying to ensure that federal laws are being enforced and complied with. And it is the Biden administration that is “hindering” the execution of the laws of the United States with its abject refusal to enforce our immigration laws, to prevent illegal aliens from crossing the border, and its unlawful granting of mass parole to those aliens once they are in the United States.
If Biden tries to call forth the Texas National Guard, the most likely federal statute for him to try to use, according to a source familiar with National Guard operations, is 10 U.S.C. § 12406. This provision allows the president to “call into Federal service” the National Guard under one of three circumstances: an “invasion by a foreign nation”; “a rebellion or danger of a rebellion against the authority of the Government of the United States”; or the president’s inability “with the regular forces to execute the laws of the United States.”
The fatuous argument that Biden would have to make is that Texas is engaged in a rebellion against the authority of the United States or some such other rubbish. But as already noted, there has been no rebellion by Texas and no court order of any kind finding that Texas is somehow violating federal law or refusing to comply with federal courts.
The third precondition obviously also does not apply. A claim that any of these preconditions have been met would be met with derision.
Instead of carrying out his duty as president to “take Care that the Laws be faithfully executed,” which includes our immigration laws, Biden has violated his oath of office and is acting like a bully to violate the law, threaten states like Texas that are faced with a desperate situation, and thwart the will of the people who want a secure border and the rising tide of illegal immigration stopped.
If the Biden administration would spend as much time fighting illegal immigration as it does fighting border states that are actually trying to do something about the problem, we might begin to see some progress. But don’t hold your breath.
"The time for war has not yet come, but it will come and that soon, and when it does come, my advice is to draw the sword and throw away the scabbard." Gen. T.J. Jackson, March 1861
Gov. Abbott already has plenty of good reasons for trying to stem the flow of immigrants into Texas. Calling it an "invasion" is not one of them. Both the Founding Fathers and the courts are pretty clear on that.
If the federal government refuses to perform its own constitutionally mandates responsibilities, the States have every right to do so.
No matter what your position on the border is, the Senate border bill is insane. 4,999 illegal immigrant crossing sis okay, but 5000 is too many and will trigger a border shutdown and automatic deportations. Where the heck is the logic in that?
And in an election year, the GOP in truth has little incentive to do anything at all. Trump probably thinks he's benefiting from the border mess, and he's not wrong. In short, don't expect anything to happen anytime soon.
There is quite a bit of hyperbole about immigration policy and the southern border these days. To take one prominent example, Texas Governor Greg Abbott suggests there is an "invasion" of illegal immigrants that justifies state action under the Constitution. As a constitutional matter, this is not true.
It is not just politicians who are engaged in false, hyperbolic statements, however. Journalists and purported experts are doing it too, such as those who claim that Texas is "defying" the Supreme Court by continuing to put up c-wire on state and private land near the border with Mexico. According to these accounts, because the Supreme Court lifted an injunction that barred the federal government from removing c-wire where necessary for immigration enforcement activities, Texas is flouting the Supreme Court by continuing to place c-wire on state and private property. This is not true either.
In the relevant case, Department of Homeland Security v. Texas, Texas is suing the federal government, in tort, for the destruction of state property (c-wire barriers and the like). The district court generally concluded that Texas was right on the facts, but wrong on the law, because Texas could not seek money damages from the federal government due to sovereign immunity. The U.S. Court of Appeals for the Fifth Circuit enjoined the federal government from taking additional actions that remove or destroy c-wire barriers on state and private land, save where such actions were necessary to address a medical emergency, pending additional proceedings. Among other things, the Fifth Circuit concluded Texas would be likely to show the federal government had waived its sovereign immunity under 5 U.S.C. Section 702.
All the Supreme Court did (in this order) is eliminate this injunction—likely because it concluded that the federal government is likely to prevail on sovereign immunity grounds. It did not rule on—indeed, it was not called to rule upon—the lawfulness of anything Texas is doing. Nothing in what the Supreme Court did told Texas to take or refrain from any action.
But don't just take my word for it. Here is what Professor Steve Vladeck (no fan of the Abbott administration) wrote in his "One First" substack newsletter:
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perhaps the most important thing to say about the order is how little it actually resolved (someone really ought to write a book about why this is a bad thing): By vacating the Fifth Circuit's injunction, the Court effectively protected the federal government from contempt sanctions if it continues to remove the razor wire that Texas has placed along the border—and nothing more. Thus, nothing Texas did or said later in the week was "defying" the Court's ruling; much like President Jefferson and Marbury v. Madison, there was no real way Abbott could defy such a modest ruling because it wasn't directed at Texas in the first place. Instead, as explained in more detail below, the real legal disputes between Texas and the federal government at the border remain very much open and unsettled (and are likely to only escalate further, given the politics of the moment).
As Vladeck notes, there are other pending cases that challenge the lawfulness of actions Texas has taken that conflict with the Biden Administration's immigration policy enforcement choices. One of these cases challenges a new immigration law in Texas that looks highly suspect under Arizona v. United States, a 5-4 decision from 2012 in which the Court concluded that many state actions to enforce federal immigration laws are preempted. If courts rule against Texas in those cases–and I suspect they might–and Texas does not stand down, then it will be appropriate to call out the Lone Star state for defying the Supreme Court. But that is not what has happened yet, and it is irresponsible for journalists and others who should know better to say so.
Governor Abbott may be reckless and cavalier, particularly with his rhetoric, but he's no Judge Aiken (at least not yet).
