DOJ Preparing to Sue Texas Over Border Actions

Eric Gay/AP

Gov. Greg Abbott and the U.S. Department of Justice is heading to court over whether Texas has the legal right to secure its own border with Mexico.

The Deparment of Justice (DOJ) sent a letter to Texas Governor Greg Abbott, declaring that his actions to deter unlawful entry in Texas via the Rio Grande were illegal, and that they will be seeking legal action.

“We write to inform you … that the United States intends to file legal action in relation to the State of Texas’s unlawful construction of a floating barrier in the Rio Grande River,” the letter reads. “The State of Texas’s actions violate federal law, raise humanitarian concerns, present serious risks to public safety and the environment, and may interfere with the federal government’s ability to carry out its official duties.”

The letter specifically notes the floating barriers that Abbott deployed, which are 1,000-foot floating barriers the size of wrecking balls, that were placed in the Rio Grande, near the border town of Eagle Pass.

“The floating barrier at issue here is a structure that obstructs the navigable capacity of the Rio Grande River, which is a navigable water of the United States within the meaning of the Rivers and Harbors Act,” the DOJ claimed in its letter to Abbott.

In response to the legal threat, Abbott tweeted, “Texas has the sovereign authority to defend our border, under the U.S. Constitution and the Texas Constitution. … The tragic humanitarian crisis on the border was created because of Biden’s refusal to secure the border. His open border policies encourage migrants to risk their lives crossing illegally through the Rio Grande, instead of safely and legally over a bridge.”

“Texas is stepping up to address this crisis. We will continue to deploy every strategy to protect Texans and Americans — and the migrants risking their lives,” he continued. “We will see you in court, Mr. President.”

The barrier is designed to be moved and extened to cover other parts of the Rio Grande if necessary.

Former Texas gubernatorial candidate Beto O’Rourke claimed on twitter “Defend’ the border against babies and pregnant mothers? Your own troopers are begging you to show an ounce of humanity. Do you have any?”

In his tweet O’Rourke cited a claim that “A four year old girl passed out from heat exhaustion after she tried to go through it (the wire) and was pushed back by Texas National Guard Soldiers”. Internal documents, however, show that despite the media reports of Texas Department of Public Safety (DPS) troopers receiving orders to push woman and children back into the Rio Grande, troopers were instructed to offer medical aid and assistance if necessary, according to The Dallas Express.

The main dispute is over whether Texas does have the legal right to take steps to secure its border, without the federal government if they feel like the federal government isn’t doing their job.

Aaron Reichlin-Melnick, policy director for the American Immigration Council, asserted, “The US Constitution does not give states the authority to carry out immigration enforcement at the border. Period. Nothing in the Constitution says anything like that, which is probably why the Biden administration has ignored any letters claiming otherwise.”

The 10th amendment states, however, that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Since the amendment does not specifically mention border security, some argue that the states have the right to take matters into their own hands.

Congress is authorized “[t]o establish an uniform Rule of Naturalization” in Article I, Section 8 of the U.S. Constitution, but no clause in the document openly delegates border security to federal authorities or forbids the states from maintaining the integrity of their own jurisdictions.

Additionally, some pro-border security advocates have argued that Article IV, Section 4 gives states the power to declare an invasion if the federal government does not act.

The Constitution reads, “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion.”

“The authority for states to secure the border does not rest on federal immigration law, but the Constitution’s war-making authorities that states retain in certain circumstances,” the Center for Renewing American claimed. “The guarantee against invasion is unconditional and fundamental, extending to all forms of invasion.”

At least 40 Texas counties have issued invasion declarations, calling on Abbott to declare the mass unlawful entry of migrants into the state an invasion, according to The Dallas Express.

The White House said on Friday that Abbott is endangering the lives of migrants and agents with his actions, and accused him of undermining President Biden’s border plan – which officials have tied to a drop in encounters in June to levels not seen since February 2021.

“President Biden’s plan to manage the border through deterrence, enforcement, and diplomacy after the Title 42 public health order lifted is working,” Assistant Press Secretary Abdullah Hasan said in a statement. “Unlawful border crossings are down to the lowest levels in over two years. Governor Abbott’s dangerous and unlawful actions are undermining our effective border enforcement plan and making it hard for CBP to do their jobs of securing the border. The governor’s actions are cruel and putting both migrants and border agents in danger.”

“The Department of Justice made clear that it is prepared to take the governor to court if he doesn’t immediately remove the unlawful structures in the Rio Grande,” he said.

Mexican President Andres Manuel Lopez Obrador has also issued a complaint and claimed that Hispanics shouldn’t vote for Abbott or Republicans who support stronger border measures, Fox News has reported.

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