COS Indiana Newsletter June

Lone Star program, created to fill the gaps created by the federal government’s failures, has
resulted in nearly 14,000 criminal arrests, 3,800 firearms apprehended, and more than 300
million lethal doses of fentanyl seized at the border. Texas Attorney General Ken Paxton reported
in 2021 that Texas taxpayers paid more than $850 million annually to support services for illegal
immigrants.
Rep. Chip Roy, who represents the 21st District of Texas, which includes a part of San Antonio, a
leading hub for human trafficking, exemplified the increasing dangers for citizens as well
migrants when he testified for the House Committee on General Investigating, explaining a
recent San Antonio 911 call. The Bexar County Sheriff’s office, Homeland Security Investigations,
Texas DPS, and San Antonio Police Department all worked to search for a large tanker truck after
a distressed migrant pled with a 911 dispatcher for help, explaining in Spanish that the
passengers were trapped in the vehicle and dying, as they ran out of air. The immigrant reported
80 trafficking victims, none of which were located or saved.
Last year Border Patrol found 383 dead migrants, the highest toll in a decade. Texas ranchers,
many of whom request to remain unidentified for fear of retribution by the Mexican cartels,
have discovered an increasing number of dead migrants scattered around their properties.
Texas, along with the state of Missouri, has filed suit against the Biden administration’s
suspension of the MPP, Migrant Protection Protocols, commonly referred to as the “Remain in
Mexico” policy. The Supreme Court heard oral arguments on April 26 but even if the suspension
is reversed, it will be too little, too late, to adequately protect and provide for Texans.
The Texas House Committee on General Investigating, chaired by Rep. Matt Krause, has proposed
a creative route to resolve the border crisis plaguing our nation. Writing to Paxton, the chairman
has requested Texas explore the legality of utilizing the “State Self Defense” or “Invasion Clause”
of the U.S. Constitution to facilitate Texas to independently secure the border, as the Biden
administration has undeniably failed to do so.
Prior to this appeal, the committee received testimony from many of Texas’ key players. Tracy
Norris, major general of the Texas Army National Guard, explained that the “federal government
has provided no support for this mission [protection of the border]” and even the Office of the
Attorney General acknowledged the crisis “immediately endangers our citizens and law
enforcement personnel” as the Biden administration’s refusal to acknowledge the severity of the
crisis has overburdened agents and staff, forcing the state to “stand alone against this influx.”
The overwhelming consensus is the increasing necessity to act.
Krause’s inquiry referenced the recent opinion by Arizona Attorney General Mark Brnovich, in
which he claims the crisis at Arizona’s southern border, inflamed by cartel and gang violence,
satisfies a series of constitutional requirements that empower states to act autonomously.
Article I, Section X of the U.S. Constitution, known as the “State Self Defense Clause,” dictates that
a state may not defend itself, “without the Consent of Congress … unless actually invaded, or in
such imminent Danger as will not admit of delay.” Justice Scalia postulated this clause “leaves
intact [State’s] inherent power to protect their territory”.
Additionally, the “Invasion Clause,” Article IV Section IV ensures that “The United States shall
guarantee” to “protect each of them [each State] against Invasion.” The contestation lies in
whether the border crisis, thousands of migrants flooding into southern states daily, qualifies as
an invasion.
Those who view constitutional jurisprudence with an originalist lens may turn to Johnson’s 1785
English dictionary, which was widely popular as the Constitution was drafted; defining invasion
as a “hostile entrance upon the rights or possessions of another; hostile encroachment.”
Contrarily, the Cambridge Dictionary modernly defines an invasion as “an occasion when a
large number of people or things come to a place in an annoying and unwanted way.” In
Federalist No. 43 James Madison wrote that protection against invasion is “not only against
foreign hostility but against ambitious or vindictive enterprises.”
Section IV contains no explicit limitation on the interpretation of “invasion.” Invasion can
therefore be applied broadly to hostile non-state actors such as cartels and gangs.
Members of MS-13 have been arrested at the border in the past year, charged with crimes from
drug possession to aggravated homicide. According to Customs and Border Protection data, the
agency had arrested 2,424 criminal aliens by March of this year, coming just 14 arrests shy of the
total arrests in 2020; crimes of those arrested include homicides, rapes, robberies, and deaths
caused by driving under the influence, evidently qualifying as unwanted and a hostile
encroachment.