Support Texas because it’s the right thing to do. Oppose the Senate scheme because passing it would be the wrong thing to do.
Support Texas because it’s the right thing to do. Oppose the Senate scheme because passing it would be the wrong thing to do.
Y ou’ve got to hand it to former president Trump. He took time this week between court appearances and RINO attacks for a drive-by fusillade aimed at the border. Simultaneously, though inadvertently, he could undermine besieged Texas’s struggle against President Biden’s sabotage while giving Senate Republicans cover to cut a deal with Biden that would undermine the rule of law and roll out the red carpet for millions more illegal aliens.
The Invasion Debate
In a couple of Truth Social posts (here and here), the former president jumped into the fray over whether the border crisis is the result of an “invasion” that warrants invocation of what he referred to as the Constitution’s “Invasion Clause.” Predictably, he’s under attack (as is Texas’s Republican governor, Gregg Abbott) for allegedly inflammatory rhetoric.
That is meant to remind you of the wages of Trump’s January 6 rhetoric. On that score, it is indeed precious to find Democrats and commentators in a snit over the word “invasion” after they’ve spent three years telling us the three-hour Capitol riot, in which no security personnel were killed, was an “insurrection” and an atrocity on the scale of 9/11 or Pearl Harbor (in which thousands were killed).
That said, Rich Lowry and I discussed the problems with the “invasion” branding on our podcast this week.
It’s very reminiscent of the “War on Terror” label, which for years was a source of counterproductive controversy. On the one hand, you can’t make war on a tactic, such as terrorism — there has to be an identifiable enemy. But just as frustrating was the invocation of war.
Was this war? Yes and no. There was an identifiable enemy (even if the government shied away from speaking about jihadists catalyzed by sharia supremacism). On rare but horrific occasions, that enemy was capable of projecting force on the scale of a nation-state. But the enemy wasn’t a nation-state, estimations of the size and strength of its combatant forces varied wildly, and it did not present as an enemy army — no uniforms, no regular military operations, no open carrying of weapons, no compliance with the laws of war, and so on.
Of course, if a predominantly foreign force can execute mass-murder attacks on multiple continents and induce Congress to authorize military force, resulting in American combat operations that last two decades, does it really matter if it’s technically a “war” as opposed to a “conflict” that is marginally less dire? Certainly the people living (and dying) with the consequences could not have cared less about the semantics.
Invasion is similarly ambiguous. In the common understanding, it’s an armed cross-border attack. Even that’s an oversimplification — there are many unarmed operatives complicit in armed invasions. But more to the point, we’d undoubtedly agree that an invasion had occurred if a foreign armed force of 10,000, or even 1,000, pushed its way through our border, so how can a foreign influx of 6 million not be an invasion, even allowing that the vast majority of them — though by no means all of them — are unarmed? On that score, do you have any doubt that the armed illegal entrants have numbered above 1,000 or 10,000? A just-published letter by former national-security officials, who are convinced we have been invaded and are vulnerable to an October 7–style terrorist rampage, spotlights the (likely millions of) “military aged men” who have infiltrated, many from countries designated as terrorism sponsors. Echoing this letter’s well-supported concerns, the House Homeland Security Committee reports that 169 aliens were found to have been on the terrorist watch list — to go with a staggering 35,433 with criminal records that have landed them in custody, including 598 known gang members. Border Patrol agents have seized a stunning 27,293 pounds of fentanyl.
Think ramifications. Once here, armed invaders would assert claims on your territory and resources. The 6 million aliens who’ve entered our territory illegally don’t need to be armed because Biden is not defending the border, but they are asserting a right to be in our territory, and they are depleting the resources of the federal, state, and municipal governments — so much so that education, health-care, law-enforcement, and social-service systems in the states and major cities are strained to the breaking point.
That being the case, does it really matter if, technically, it’s an invasion? Actually, no, it doesn’t.
The “Invasion Clause” to which Trump referred is the Constitution’s Article I, Section 10, Clause 3, and states in pertinent part:
No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State . . . or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
Trump invoked it because Governor Abbott did. The clause’s ostensible relevance is that, if there has been an invasion, it is constitutionally valid for states to band with each other and put down the invasion even if Congress has not consented. As a result, 24 states at this writing had announced support for Texas’s defensive operations at the border, including the installation of razor wire and other barriers, over the objection of the Biden administration. (Notably, the state support was well under way before Trump publicly encouraged it.)
Two things warrant attention here. First, the clause does not limit the occasion for forcible state action without congressional consent to invasion. All that is required is “such imminent Danger as will not admit of delay.” The federal government’s inaction in failing to secure the southern border, which is certain to usher in millions more illegal aliens if no defensive action is taken, and will continue to crush the resources of Texas and other states, is an imminent danger that will not admit of delay. Whether it also technically qualifies as an invasion is beside the point.
Second, Abbott cited the clause because the late, legendary justice Antonin Scalia cited it in his scintillating opinion in Arizona v. United States. It was a partial concurrence and partial dissent published in 2012 — when the Supreme Court grappled with the Obama–Biden administration’s refusal to enforce immigration laws and its obstruction of Arizona’s efforts to do so.
Significantly, Justice Scalia was not pronouncing that every influx of illegal aliens should be deemed an invasion. He was making the deeper point that the Constitution recognizes both that the states are sovereign and that they thus retain an “inherent power to protect their territory” — an ineliminable aspect of sovereignty. That is, there needn’t be an invasion for a state to act in self-defense. Rather, each sovereign state has an inherent right to self-defense that the federal government may not divest; ergo, of course permission from the federal government could never be a prerequisite to state action in self-defense arising from an invasion or other imminent danger.
Beyond that, Scalia observed that the Court had recognized nearly two centuries ago, in New York v. Miln (1837), that Congress had not attempted to divest the states of their sovereign authority to regulate the entrance of foreigners into their territories. I do not believe it could do so constitutionally, but that’s neither here nor there because Congress has still done no such thing.
It is not the late-breaking news that Trump sees Biden’s dreadful record on the border as his best 2024 campaign issue — even more than the Democratic lawfare being waged against him that, unlike illegal immigration, is of much more concern to him than to the country broadly. By jumping into the invasion debate, he elevates its salience in a way that inflates its actual importance. Given how tribal we’ve become, this assures that some percentage of people who would otherwise sympathize with Texas will now decide Texas may be in the wrong because if Trump says it’s an invasion it probably isn’t.
It doesn’t need to be an invasion — just a disaster, which it undeniably is.
The Emerging Senate Deal Is Bad, Regardless of Trump’s Motives for Opposing It
As I warned last month, squishy Senate Republicans are in negotiations with their Democratic colleagues and the administration on a deal to “address” the border catastrophe — to address, that is, the explosion of illegal immigration that such comprehensive reform–minded Republicans have been abetting for 40 years. Their hearts, they’re always the first to assure us, are pure: They just want to fix a “broken system” and show that “we can govern responsibly” by reaching across the aisle.
In truth, what’s “broken” about our immigration system is that the Supreme Court, over a century, has shifted enforcement responsibility from the states to the federal government, meaning that security measures (or the lack thereof) for Americans in southern border states are determined nearly 2,000 miles away by pols and bureaucrats whose lives are unaffected by the chaos. Beyond that, what’s mainly “broken” is the will to enforce the law.
For the most part, existing federal immigration laws are fine. For example, they say illegal aliens must be detained until their legal proceedings are concluded. Plus, only Congress has authority to establish conditions for paroling illegal aliens into the country, and lawmakers have established stringent conditions.
What has caused the crisis is that, rather than detaining illegal aliens, the executive branch releases them into the country upon capture (those that are captured, that is, as opposed to the hundreds of thousands of “got-aways” who evade what the feds euphemistically call “encounter” by Border Patrol agents). Moreover, as if the hordes enticed to bang on the gates were not a huge enough problem, Biden illegally “paroles” aliens into the country — even though (a) they are not eligible and (b) he has no such parole authority — in order to pretend that they are really legal. (This would have been a worthy chapter for Darrell Huff’s 1954 classic, How to Lie with Statistics.)
House Republicans are joining the demands of Texas, Florida, and other states that the existing laws of the United States be enforced. Senate Republicans instead want to cut a deal that would allow the daily entry of 3,000 illegal aliens. They think this makes sense (of course they do), because if nothing is done (translation: If Biden continues not enforcing the law) it will be 10,000 per day — and anyway, Democrats are hoping for a limit of 5,000 to 7,000 per day, so 3,000 would be a national-security coup, right? Moreover, they leak from the negotiations (because they wouldn’t dare display this dog’s breakfast in writing until they think they’re in a position to ram a vote through) that the deal has more funding for the border!
Jeez Louise. The 3,000 a day would compute to more than a million illegal aliens per year — on top of the 6 million plus Biden has already let in (one and a half times the population of America’s second-largest city, Los Angeles, and more than that of some 33 states). If the past is prologue, the GOP would cave to the Dems’ demand for at least 5,000 a day (to show that “we can govern”!), which would compute to nearly 2 million per year (i.e., roughly the Biden annual rate since 2021). Naturally, the number of illegal aliens that actually get in would be considerably larger: (a) the senators’ formula cannot account for “got-aways” (estimated at about 600,000 per year under Biden), and (b) the incentives created by a “system” that allows millions more illegals to enter (while those non-Americans who play by the rules wait for years in line) will keep the caravans coming, inevitably raising the per-day rates of entry.
But leave all that aside (impossible, I know). Notice: The underlying premise of a trigger number is that the border can be closed — legally and practically — once that chosen number is hit. Since the law of the United States is that illegal aliens must be detained, and since we lack detention space, why not just agree that the number should be zero and close the border? Senate Republicans point out that Democrats will never agree to that. Yeah, we know . . . but how is that an excuse for Republicans to agree to legislation green-lighting massive illegal entries when that would undermine statutory law’s requirement that aliens be detained? Must Senate Republicans be reminded that Republican-led states are relying on that very law in lawsuits brought to induce Biden to faithfully execute the laws, as he has taken an oath to do?
And please, stop with the additional-funding drivel. Biden uses border-security funding not to secure the border but to “process” illegal aliens into the country, so that eight or ten years from now, they can have court dates they’ll ignore. If Congress gives Biden more funding, he will use it to process more illegal aliens. If you want to talk funding, how about slashing funding from things Biden wants until he enforceably agrees to secure the border — the House GOP approach, which the moderate Republican senators are helping Biden discredit.
Why pretend that there is some acceptable solution other than the sole solution: Biden must reverse course, period. Existing law is not the problem. The president’s refusal to enforce existing law is the problem. If he won’t reverse course, then impeach him — don’t waste time with his factotum, DHS secretary Alejandro Mayorkas.
Do you think Biden wants to be impeached? Yes, I know, there will never be sufficient Senate votes to convict him. But this is an election year. Even the threat to instigate an impeachment proceeding that would rivet national attention to the border crisis Biden has created would concentrate what’s left of his mind. Do you think Senate Democrats want to defend Biden’s policies in a nationally televised impeachment trial in the stretch run of an election campaign?
Enter Trump. Reporting indicates that Trump is pressuring his Senate allies not to cut a deal with Democrats — not because such a deal would be bad for the country but because it would be a “win” for Biden that would diminish the border as an election issue. And just as you would expect, Republican moderates, who are crafty tacticians when it comes to facilitating bad deals, are claiming that Trump is trying to upend their good-faith bipartisan bargain for indecorous political reasons. From their perspective, it’s a smart ploy: Trump is unpopular nationally, so if opposition to the deal can be spun as fighting off Trump’s machinations, then maybe they can get the deal across the finish line.
Don’t be fooled. The fact that Trump’s motives may be political rather than high-minded does not change the basic fact that the Senate deal would be a disaster that camouflages Biden’s dereliction of duty. It’s not a good deal because Trump opposes it; it’s a bad deal because it’s a bad deal.
Here’s a thought: Support Texas because it’s the right thing to do. Oppose the Senate scheme because passing it would be the wrong thing to do. And for once, forget about what Trump thinks because we’re in a crisis at the moment and what he thinks doesn’t matter. Or do you figure we should just let another 3 or 4 million illegal aliens into the country over the next nine months because that might help Trump’s prospects?