While many may view what’s happening at the southern border as an immigration issue, what’s fundamentally at stake is a question of constitutional authority, responsibility, and state sovereignty – safeguarded by the founding fathers when they drafted, and the states ratified, the U.S. Constitution creating the federal government.
Texas has a constitutional authority under the U.S. Constitution to declare an invasion at its border with Mexico and to repel it – for the same reasons that Arizona does. This is best explained in a formal opinion issued by Arizona’s Attorney General earlier this year.
While neither Arizona’s outgoing governor nor its county judges have declared an invasion, judges and commissioners representing at least 33 Texas counties have. In July, Texas Gov. Greg Abbott issued an executive order citing Texas’ constitutional authority to defend its sovereignty. His order, and the resolutions filed by Texas counties, cite the U.S. Constitution (Article 1, Section 10, Clause 3) and the Texas Constitution (Article 4, Section 7) granting this authority.
And while Abbott has arguably done more than any other governor to secure Texas’ border, his order stopped short of formally declaring an invasion and repelling it by using his full constitutional authority to “engage in war when actually invaded, or in such imminent Danger as will not admit of delay.”
The county resolutions have called on him to do so, citing transnational cartels trafficking a record number of people and drugs into Texas that’s created an imminent threat to the lives of Texans.
But many officials have also expressed confusion over what an invasion looks like. Some say Texas isn’t being invaded because those coming across aren’t wearing national military uniforms carrying AK-47s. That’s true from a conventional warfare perspective, but conventional warfare isn’t what’s being waged at the southern border.
Others have argued those illegally entering Texas aren’t “invaders” and are coming for a better life to work. Still others claim many illegal aliens are seeking asylum. While this may be true for some, the orchestrated movement of people from over 150 countries through “mass migration” is being weaponized by transnational criminal narco-terrorist organizations. They’re using an unconventional and hybrid form of warfare utilizing narco-terrorism, counter-lawfare, and migrant-warfare, all of which I witnessed in Afghanistan.
In Afghanistan, insurgents didn’t wear national military uniforms. They waged irregular guerrilla warfare like the cartels are doing. They’d establish territorial insurgency shadow governance regimes and take control over local jurisdictions. While the U.S. worked to build partners and establish “whitespace” to counter underground shadow governance, in reality insurgency forces would exercise full command and control of large areas, regulating violence and illicit economic activities in the shadows. They’d exploit and murder the local populace as needed, move weapons and drugs to expand their profit, terrorize everyone in their path, and ultimately seize control of Afghanistan after waging war with the U.S. for 20 years – and killing nearly 2,500 American servicemen and women.
The same strategy is used in Texas. The cartels understand the only way for illegal aliens to make an asylum claim (even invalid ones) is to go through a port of entry, which they control. There isn’t a single person who gets across the Rio Grande River from Mexico without owing the cartels. The cartels control which groups of people (several hundred at a time) cross, when and where, using a counter-lawfare tactic to exploit U.S. laws to their advantage.
The cartels use illegal aliens as mules – to bring in drugs – and as weapons to exploit U.S. laws. The millions coming into the U.S., unknowingly or knowingly, are participating in migrant-warfare strategy. While Border Patrol agents become overwhelmed in one area to process large groups of people, they’re taken away from defending the border. Cartels exploit these openings by bringing through record amounts of fentanyl and groups of people they are trafficking north and weapons and money south.
Similarly, law enforcement officers in rural counties have caught either gang members or “scouts” working for the cartels – who’re looking for vulnerable areas to establish control. But law enforcement officers actively looking for them have found safe houses, stash houses and other logistics hubs being used to move people, drugs, weapons, money, stolen goods and other contraband further into Texas. Applying pressure to dominate territory and establish control, guerilla warfare tactics, is what was done in Afghanistan.
In major U.S. cities, cartels have already embedded themselves including in Houston, the largest city closest to the southern border and major human and drug trafficking hub. Houston began 2022 with the highest homicide rate. It’s escalation of violent crime and police shootings is no coincidence.
Unfortunately, Texas Attorney General Ken Paxton and his staff don’t appear to share this viewpoint of irregular warfare establishing a shadow governance and foothold in Texas. First Assistant AG Bruce Webster has suggested only those wearing uniforms through a conventional military force constitutes an invasion, although there’s no historical or constitutional basis for this argument. He also said Paxton wouldn’t be issuing an invasion opinion citing a federal law, Section 242, which I’ve argued is a misunderstanding of the federal preemption doctrine.
Paxton’s office also published information about illegal immigration to assist impacted Texans, which pointed to U.S. v Arizona, a case in which the Supreme Court ruled states cannot enforce federal immigration law.
But what’s at issue isn’t Texas enforcing federal immigration law. It’s a matter of the state protecting its sovereignty and the safety of its citizens in the absence of federal enforcement of immigration law. Former Supreme Court Justice Anthony Scalia explained why in his powerful dissent in this case.
Scalia wrote, “The Government complains that state officials might not heed ‘federal priorities.’ Indeed, they might not, particularly if those priorities include willful blindness or deliberate inattention to the presence of removable aliens in Arizona … The State has the sovereign power to protect its borders more rigorously if it wishes, absent any valid federal prohibition. The Executive’s policy choice of lax federal enforcement does not constitute such a prohibition.”
Ten years later, the federal priorities of willful blindness and deliberate inattention has led to the ensuing invasion of irregular warfare unleashed at our southern border. In the absence of the constitutionally required federal guarantee to repel this invasion, Texas has the duty and responsibility to protect its sovereignty by asserting its constitutional authority to protect the lives and liberties of its citizens. In other words, this is not an issue of criminal enforcement, but rather the separate and distinct question of utilizing the lawful constitutional framework that provides the State of Texas authority to repel not only migrant warfare being waged against it, but all other irregular forms of warfare unleashed by transnational narco-terrorist criminal organizations.
Since last January, an estimated more than 5 million illegal aliens have been apprehended by Border Patrol agents or evaded their capture. Since last March, Texas law enforcement officers alone made more than 21,400 criminal arrests, including more than 18,900 felony charges, according to state data. They’ve also seized over 350 million lethal doses of fentanyl, enough to kill every man, woman and child in America. An enemy bringing in enough drugs to kill everyone in the U.S. is an act of war.
The difference between Afghanistan and America is we have the U.S. Constitution and the rule of law to defend our citizens and protect state sovereignty. It’s the most important legal document in the western world. The Biden administration has abdicated its responsibility to defend the Constitution from threats both foreign and domestic.
While Gov. Abbott has called on Congress to reinstate federal policies to secure the border, Congress, even with a slim Republican majority, will likely be unable to do so. He also said, “where and if Congress falls short, Texas must continue our efforts to secure our border.”
As Gov. Sam Houston said, “Texas has yet to learn submission to any oppression, come from what source it may.”
Texas counties can support Gov. Abbott in his efforts and in Texas’ struggle against oppression by passing resolutions declaring an invasion and calling on him to use his full constitutional authority to repel it. The Texas Legislature must also take action and support the governor to repel the invasion and irregular warfare being waged in Texas.
Jonathan Hullihan is the lead attorney in Texas for County Citizens Defending Freedom. He’s served on active duty in the Navy Judge Advocate General’s Corps for over 13 years, being designated as an expert in International Law and National Security Law. He has acted as legal counsel and advisor to the Navy SEAL teams, the United States Navy Blue Angels, and Special Operations units in the United States Central Command (USCENTCOM) theater of operations.