BY VALERIE GONZALEZ AND MARK REAGAN | STAFF WRITERS
A lack of clarity over Gov. Greg Abbott’s latest executive order authorizing state law enforcement to return migrants to the border fueled debate Thursday over what some consider “obviously unconstitutional” and others who say the governor did not go far enough.
Abbott, who is running for reelection, signed the executive order at 1 p.m. and issued a news release about 30 minutes later.
“I have authorized the Texas National Guard and Texas Department of Public Safety to begin returning illegal immigrants to the border to stop this criminal enterprise endangering our communities,” Abbott said via a news release.
The executive order is rooted on the state’s interpretation of an article in the U.S. Constitution, Art. IV, § 4, that “[t]he United States . . . shall protect each [State in this Union] against Invasion.”
As with many of the governor’s other challenges to the Biden administration’s handling of the border, this executive order will likely end up entangled in courtrooms.
“When the founders were drafting the constitution, they knew what an invasion was and an invasion had only one meaning: military invasion,” Aaron Reichlin-Melnick, the policy director at the American Immigration Council, said Thursday afternoon.
Reichlin-Melnick predicted a swift response from U.S. Attorney General Merrick B. Garland and the Department of Justice. By Thursday afternoon, immigrant activist organization, RAICES, put out a release demanding intervention by the DOJ.
“Abbott’s Executive Order is unlawful, and the Department of Justice needs to intervene by immediately and aggressively investigating Abbott’s Operation Lonestar program, its heinous civil rights violations, and the Governor’s overreach of power,” the release stated.
The four-page executive order lacks clarity on how the migrants will be returned to the ports of entry which are on federal property and managed by U.S. Customs and Border Protection, a federal law enforcement agency.
“I understand the effort. I understand the intent. I don’t know whether it’s going to work properly,” McAllen Mayor Javier Villalobos said Thursday, but called the effort a “logistical nightmare.” He added, “Especially, stating that they can be picked up and dropped off at a port of entry because I’d assume that you’d have the state and the federal government working together.”
It could have larger implications for Abbott’s other border initiatives.
“Is what he is actually saying here is that he’s just going to have DPS take people arrested by Operation Lone Star, not criminally prosecute them and instead simply drop them off at the nearest port of entry? Essentially that would amount to a rolling back of Operation Lone Star,” Reichlin-Melnick considered.
Gov. Abbott initiated Operation Lone Star in March 2021 to focus on stopping migrants entering the country illegally and referring them to the U.S. Border Patrol. In some counties with willing property owners and elected officials, migrants are prosecuted for trespassing through private property.
Thursday’s order makes no mention of prosecution, but only on the return. Typically, returns to Mexico are complex and delicate coordinations between federal and Mexican state entities.
A federal lawsuit could also impact those the governor tasked with carrying out his executive order.
“Soldiers and law enforcement could theoretically be criminally liable for false imprisonment they arrest under these authorities, potentially subject to kidnapping charges for moving people in violation of their rights, and would very likely be subject to civil liability for taking immigration law in their own hands,” Reichlin-Melnick cautioned. “It is election season and this should not be viewed outside of that lens.”
Reichlin-Melnick suspects former Trump administration officials like Ken Cuccenelli, then acting deputy secretary of DHS, have pressured Texas and Arizona to take steps in line with the former presidential administration’s views.
“We acknowledge Governor Abbott’s recognition that the facts on the ground along the border comport with the Constitution’s understanding of an invasion,” Cuccenelli, now part of the Center for Renewing America, said via a statement Thursday following Abbott’s announcement. The Center for Renewing America is an organization led by Trump’s former acting director for the Office of Management and Budget, Russ Vought.
“However the Governor does not appear to formally declare an invasion nor direct the National Guard and Department of Public Safety to remove illegals across the border directly to Mexico. That is critical. Otherwise this is still catch and release,” the statement from the Center for Renewing America added.
The Texas Tribune this week reported that Republican officials in Kinney County have called Abbott to declare an invasion so the state can deport migrants, despite that responsibility lying with the federal government.
Abbott’s news release claims that 5,000 migrants were apprehended over the holiday weekend.
In the Rio Grande Valley, Border Patrol agents encountered three large groups totaling 403 migrants in Starr County over the weekend.
However, in McAllen, the mayor said they have not seen record high numbers of migrants released from federal custody to the respite center as was seen last year when the doors closed after maximum capacity was reached.
“Before people were coming to the ports of entry seeking asylum, now they’re just trying to cross whatever method they can,” Villalobos noted.
In the governor’s release, Abbott claims President Joe Biden’s decision to end Title 42 expulsions — a pandemic-era order — and former President Donald Trump’s Remain in Mexico policy where asylum seekers stayed in makeshift camps in Matamoros and Reynosa, created “a border crisis that has overrun communities along the border and across Texas.”
Title 42 is a public health policy leveraged during the pandemic that gives federal officers the authority to turn back asylum seekers.
Without Title 42, asylum seekers normally look for law enforcement to turn themselves in and formally request asylum. Some are placed in detention facilities while others are released to the U.S. to wait for their court dates.
The turn-back practice nearly ended but was kept in place in May after courts stepped in. Critics say that practice has led to an increase in attempts to gain entry into the United States but circumvent law enforcement, just as the group of 53 migrants tried but who died in a hot trailer near San Antonio this month.
“Here in McAllen we react to what’s going on. We shouldn’t have to be involved at all, and we don’t want to,” Villalobos said. “The governor of the State of Texas shouldn’t be involved in this either.”
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