Texas Governor Greg Abbott (R) is acting on his November 15 invocation of the “Invasion” clauses of the US and Texas Constitutions, and writer William Melhado and his Texas Tribune editors have colored this action as, somehow, “fringe,” or “radical”, thus, we see this headline:
“Gov. Greg Abbott embraces ‘invasion’ language about border, evoking memories of El Paso massacre”
“To many Hispanic and Latino Texans, the word ‘invasion’ brings a particular horror to mind. It’s the same word the gunman in El Paso invoked in 2019 in a hate-filled manifesto about immigration — posted just before he killed 23 people.”
Although his leftist bias clearly shows through, Melhado does explore the constitutional side of the issue, and that side deserves plenty of exploration. He writes:
“To many hardline conservatives in the state, the word is at the heart of a legal theory they’ve embraced — one legal scholars say simply isn’t true. If the governor were to declare that Texas is under invasion due to open borders, the conservatives claim, he could deport migrants without the federal government.”
What more can we discern from the report?
Writes Mr. Melhado:
“For months, conservatives have pointed to the part of the U.S. Constitution that says states cannot ‘lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded.’ If Abbott declares an invasion, they say, he can begin deportations — normally something only the federal government can do — on his own.”
And Melhado tags lawyer Joseph Nunn:
“’The central problem for Abbott is that Texas is not being invaded,’ wrote Joseph Nunn, a lawyer at the Brennan Center’s Liberty and National Security Program at New York University School of Law. ‘On multiple occasions, the federal courts have rejected the argument that an influx of undocumented individuals into the U.S. could constitute an ‘invasion.’”
This is worth understanding, in depth.
Many American’s mistake the power in Article One, Section Eight, granting the Congress the “power” to create a rule of naturalization with the “power” to create a rule over immigration. But naturalization is how visitors become American citizens, not whether visitors can be on the soil of any US state.
The only passage of the Constitution from which one might infer a link to immigration is in Article One, Section Nine, which reads, in part, “The Migration of Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one-thousand-eight-hundred-and-eight…”
this provision tells readers that, prior to 1808, Congress could not write laws regarding the migration into any of the original thirteen states from outside the US or from other states in the union. Such wording pertained to slave importation, and the philosophy of the Founders, as expressed in the Ninth and Tenth Amendments, implies that, unless the Constitution were amended, Congress did not have jurisdiction over importation of slaves in the original states until after 1808, and that it had no power to control the importation of slaves into any new state.
This soon was reflected in policy. The Compromise set the standard for the process of state admission from the territories of the Louisiana Purchase. Thus, the new northern “free states” and southern “slave states” would alternate admission, keeping what many politicians in Congress believed would be a balance between “slave” and “free” states for representation.
If the federal government could block importation of slaves into states beyond the original thirteen, then there would be no need for the Missouri Compromise, because Congress could block the importation of slaves into those new “slave” states, making them de facto “free” states and shifting even more population-based “representative” power to the north.
It was well understood that immigration was not a federal purview. Thomas Jefferson said so himself in his 1798 Kentucky Resolution Number Four, which was a slap at the “Alien Act” pushed by then-President, John Adams:
“IV. Resolved, that alien friends are under the jurisdiction and protection of the laws of the state wherein they are; that no power over them has been delegated to the United States, nor prohibited to the individual states distinct from their power over citizens; and it being true as a general principle, and one of the amendments to the Constitution having also declared, 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,’ the act of the Congress of the United States passed on the 22d day of June, 1798, entitled ‘An act concerning aliens,’ which assumes power over alien friends not delegated by the Constitution, is not law, but is altogether void and of no force.”
Texas’s state constitution, approved in 1869, included an article establishing a “Bureau of Immigration” in it.
If the people of Texas believed Congress had the power to control immigration, why would they bother creating their own Bureau of Immigration?
The answer is that Congress DID NOT have such an enumerated power, and the only reason contemporary Americans fight over what the feds “should do” at the border is because of a corrupt 1875 Supreme Court ruling in the case of “Chy Lung v. Freeman” which was a challenge to a California statute imposing a charge on boat-owners who were facilitating ingress to Chinese women (seen as likely prostitutes by the politicians). With the ruling, the Justices simply made-up federal immigration control, saying, in part, this errant nonsense, which easily can be refuted by actually reading the Constitution:
“The passage of laws which concern the admission of citizens and subjects of foreign nations to our shores belongs to Congress, and not to the States.”
This led to federal passage of the Page Law that same year, a statute that restricted lower-price Chinese immigrant labor, and established from that point on that the states would suffer the loss of their constitutionally granted power over immigration.
In 1882, Congress became even more draconian, and passed the “Chinese Exclusion Act,” barring entrance into any state by Chinese laborers for ten years, halting Chinese non-labor immigration for SIXTY years, and prohibiting entirely all naturalization by Chinese people – all of which came as a result of heavy lobbying from higher-priced American labor interests that did not want to compete against people who might work for less…
All of which harmed American consumers who were forced to shell out more for products and services, preventing them from saving and having money left to invest in new ventures.
And all of which is unconstitutional, without any doubt.
Thus, Abbott is on both stable and unstable ground.
On his state level, he and the Texas legislature undoubtedly have constitutional authority to handle the state border and immigration.
But on a federal level, can he and many conservatives turn to what Melhado mentioned, the “invasion” clause of the Constitution? As Joseph Nunn correctly observes, the threat of invasion properly requires a Declaration of War against the invading nation-state before the feds can get involved in “protecting the nation” against an invading force.
But there could be another constitutional avenue we can cite as we close our investigation and ruminate on all of this.
Article Four, Section Four of the US Constitution DOES allow the federal government to operate with US forces inside a state if the government of said state take certain actions. Specifically, the state must request assistance to stop domestic violence:
“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”
This leaves us to discuss the issue and decide for ourselves. We might not be able to change federal policies, but we can earnestly look at this information and try to discern what is right, morally, and constitutionally.
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