FIRST ON FOX – A group of 26 attorneys general are defending Texas Gov. Greg Abbott’s right to defend his state “against invasion” amid a bitter border battle between Texas and President Biden.
Last week, Abbott said he would assert Article 1 powers to defend against an “invasion” at the border while the Biden administration refuses to enforce federal immigration laws. His announcement sparked a controversy that will play out in court about what legal grounds Abbott can claim to support his decision.
In a letter obtained by Fox News Digital, 26 Republican attorneys general tell President Biden and Homeland Security Secretary Alejandro Mayorkas that they support the Lone Star State, saying that “millions of people illegally coming into Texas as part of a coordinated assault on our border is an invasion” and that “states must be able to defend themselves from invasion.”
The escalating crisis at the Texas-Mexico border came to a head last week after the Supreme Court ruled 5-4 to temporarily overturn a lower court’s injunction that banned the federal government from cutting razor fencing Texas had installed along the border near Eagle Pass while litigation continues.
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Abbott said that though the Supreme Court said the Biden administration could continue cutting the fencing, the order does not prevent him from continuing to construct the razor wire fencing – which is what he promised to do despite sharp criticism from the White House.
In their letter, the AGs told the White House, “As lawyers yourselves, you must know that reports that Texas is ignoring or ‘defying’ the Supreme Court are wrong, either misunderstanding or deliberately misstating the law.”
“The Supreme Court’s order did not tell Texas that it could or could not do anything. Texas should be applauded for continuing to try to protect the border despite the federal government now, again, being able to try to destroy the barriers Texas builds,” the AGs note.
The AGs added that “states must be able to defend themselves from invasion,” and that no one seriously contests that point.
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Article I, section 10, clause 3 lays out the circumstances that states may act to defend themselves in a crisis, the AGs wrote.
Article 1, Section 10, which Abbott says was “triggered” by Biden’s inaction at the border, 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.”
“Justice Scalia said it best in his dissent in Arizona v. United States: States have a ‘sovereign interest in protecting their borders,’” they said, referencing a 2012 Supreme Court case.
“Right now cartels, terror groups, and other bad actors are taking advantage of the chaos by the border to orchestrate a mass influx of people. Gangs are using the flood of people to hide their ‘predator’ members as they enter the United States,” they said.
“Millions of people illegally coming into Texas as part of a coordinated assault on our border is an invasion. No state, not even Texas, can handle such an influx of people. And no one—not Texas, not the United States—knows whether any person illegally crossing the border is engaging in additional criminal activity,” they argued.
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Attorneys General Brenna Bird of Iowa and Sean Reyes of Utah, who led the Monday letter, note that since Biden’s inauguration day in 2021, more than 6 million illegal immigrants have crossed the southern border. “That is effectively adding the population of Iowa and Utah to our country in less than three years,” they said.
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“The invasion on our southern border has made every state a border state,” Bird told Fox News Digital in a statement.
“If the Biden Administration won’t do its job to secure our border and keep Americans safe, it should step aside to let the States do the job for them,” she said.
Texas’ fight is our fight,” Attorney General Reyes told Fox News Digital. “And if the White House will not defend our laws and innocent citizens, states have the authority under the U.S. Constitution to defend themselves,” he said.