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Horowitz: Texas should secure its own border. Here’s how.

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"Are the sovereign States at the mercy of the Federal Executive's refusal to enforce the Nation's immigration laws?"

That was the question Justice Antonin Scalia posed in his partial concurrence in Arizona v. U.S. in 2012, when there were 357,000 apprehensions at our southern border. With four months left in this fiscal year, there have already been 900,000 apprehensions, with the numbers from the past three months nearly tying the all-time record.

But the situation at the border is even worse than those numbers suggest. The number of gotaways, which are usually the worst criminals, is higher than ever. Also, this comes at a time when Border Patrol and border infrastructure are much larger and more robust than they were during the greatest previous waves of illegal immigration 20 years ago, which makes the lack of deterrent behind those numbers all the more remarkable.

The reason why things are worse than ever despite more agents on the ground is because our Border Patrol is now being used to actively work with the cartel smugglers. Todd Bensman of the Center for Immigration Studies reports that CBP has prohibited agents from catching the smuggler who steers the rafts across the Rio Grande River.

"So established is this non-belligerence arrangement that cops and smugglers often banter with one another across the water or at the Texas shore about the weather, or how long the boats might be running tonight," reports Bensman. "Scenes play out where Border Patrol agents simply watch from five or six feet away as smugglers stand on the Texas riverbank or in shallow Rio Grande waters helping their illegal-alien customers out of boats."

From his conversations with high-ranking officials at the Texas Department of Public Safety (DPS), Bensman, who worked at the Texas DPS for 10 years, reports that CBP is warning Texas officials that they should also refrain from nabbing the smugglers as well.

Taken together, this strategy ensures that all the assets of Border Patrol are actually being harnessed to facilitate a more efficient invasion, which is why the numbers are sky high.

Which brings us back to the original question posed by Scalia in 2012: Are states really at the mercy of DHS' criminal behavior in not only leaving the border wide open but downright facilitating human smuggling into the states?

In 2006, then-Sen. Joe Biden and Senate Majority Leader Chuck Schumer voted for the Secure Fence Act. It required the secretary of homeland security to "take all actions" necessary within 18 months of passage to "achieve and maintain operational control over the entire international land and maritime borders of the United States" (emphasis added). Section 2(b) of the bill defined "operational control" as "the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband."

What has ever come of this requirement? Why should a state be constrained by "federal powers," if they are suffering from the results of the feds violating those very federal powers?

Article I, § 10, cl. 3 (the Compact Clause) states:

No State shall, without the Consent of Congress, 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, or in such imminent Danger as will not admit of delay.

The Constitution is clear that, all things equal, states shouldn't engage in warfare with other countries. But all things are not equal in this case, and the Constitution made an exception for those times when states are invaded and in imminent danger.

John Marshall, during the Virginia Ratifying Convention, made it clear that this section affirms that the power given to the states by the people to repel an invasion "is not taken away" by the federal war powers. "When invaded, they [can] engage in war, as also when in imminent danger," asserted the future chief justice during the debate over the Compact Clause on Monday, June 16, 1788. "This clearly proves that the states can use the militia when they find it necessary."

Joseph Story in his commentary on the Compact Clause writes that while the prohibition on states making war is obviously necessary, it was "wisely guarded by exceptions sufficient for the safety of the states, and not justly open to the objection of being dangerous to the Union."

Still, a state may be so situated, that it may become indispensable to possess military forces, to resist an expected invasion, or insurrection. The danger may be too imminent for delay; and under such circumstances, a state will have a right to raise troops for its own safety, even without the consent of Congress.

Haven't the border states (the ones that still care) waited long enough, with too much delay, to act unilaterally?

Some might suggest that caravans and groups of illegal aliens coming north are obviously not part of a declared war. But if you look at the original language of Article IV's guarantee clause protecting states from invasion, Madison originally drafted its language to be read as protecting against "foreign violence." It's clear that this was not necessarily referring to formal warfare with a nation-state, but repelling violent incursions from Indian tribes. If a state can't protect against foreign violence, then what can a state do?

Remember, in addition to telling CBP to stand down at the border, the Biden administration is handcuffing ICE from removing even the most violent foreign criminals. Does that mean a state is forced to allow illegal alien rapists to remain within its borders with no recourse? There has been a 900% increase in apprehension of criminal aliens just in the Laredo Sector alone. Is Texas without any right to stop the untold numbers who are likely getting away and cutting through the ranches of its citizens?

As always, the Lone Star State needs to go it alone and lead the way. Governor Greg Abbott should call a special session to bolster the resources and legal authority of state and local law enforcement to deter and punish illegal aliens. The following issues should be addressed:

  • A surge in funding for an entire division of the Texas DPS to focus solely on deterring illegal immigration.
  • A surge in resources to build or repurpose jail space to hold illegal aliens who are charged on state crimes.
  • Severe mandatory minimum sentences for human smuggling, criminal trespassing, child endangerment, and other existing state crimes that can be used to hit those coming over the border. Also, make them ineligible for bail because they are, by definition, the ultimate flight risk.
  • Pass Rep. Bryan Slaton's bill to have Texas build the border wall. This can be done with a public crowdsourcing campaign as well.
  • In addition, it's time to make illegal immigration a state crime. Many federal crimes are doubled up as state crimes, and there's no reason why illegal immigration should be any different. With a new Supreme Court, it's time to challenge some of the premises behind the erroneous legal theory of the 2012 Arizona v. U.S. decision.
Throughout the Trump tenure, blue states successfully thwarted the enforcement of immigration law with sanctuary policies. Why then shouldn't red states be able to enforce the laws the feds refuse to abide by? The Constitution was designed for the federal government to protect the states from invasion. At some point, that principle can no longer be contorted to such an extent that it becomes a suicide pact,s whereby states are bound by the federal government's own malfeasance.
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