Texas Can’t Treat Migrant Influx as Invasion

As conservatives reel from Republican failures at the ballot box, some now may compound their loss by betraying their commitment to the Constitution. They have the best of intentions: to secure the lawless southern border. But relying on claims that the surge of illegal aliens amounts to an “invasion” to justify a state’s use of military force distorts the Constitution, upsets the proper balance between federal and state power, and starts a dangerous game that could result in violence. All of this is at stake in Texas governor Greg Abbott’s remarkable decision to deploy the Texas National Guard to cope with the flood of illegal aliens pouring across the border.

Abbott has good reason. President Joe Biden has allowed the southern border to fall into chaos, with 2 million illegal aliens crossing into the United States in the past year. This record-breaking surge has imposed heavy costs on communities in Texas, Arizona, and California, created a route for the trafficking of people and drugs, and led to thousands of deaths of migrants at the crossings.

About the Author

John Yoo

John Yoo is the Thomas W. Smith Senior Fellow at the Civitas Institute, University of Texas at Austin; Emanuel S. Heller Professor of Law at the University of California at Berkeley; and a nonresident senior fellow at the American Enterprise Institute. He is a co-author of the just-released two-volume American Constitutional Law (Routledge, 2026).

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As conservatives reel from Republican failures at the ballot box, some now may compound their loss by betraying their commitment to the Constitution. They have the best of intentions: to secure the lawless southern border. But relying on claims that the surge of illegal aliens amounts to an “invasion” to justify a state’s use of military force distorts the Constitution, upsets the proper balance between federal and state power, and starts a dangerous game that could result in violence. All of this is at stake in Texas governor Greg Abbott’s remarkable decision to deploy the Texas National Guard to cope with the flood of illegal aliens pouring across the border.

Abbott has good reason. President Joe Biden has allowed the southern border to fall into chaos, with 2 million illegal aliens crossing into the United States in the past year. This record-breaking surge has imposed heavy costs on communities in Texas, Arizona, and California, created a route for the trafficking of people and drugs, and led to thousands of deaths of migrants at the crossings.

About the Author

John Yoo

John Yoo is the Thomas W. Smith Senior Fellow at the Civitas Institute, University of Texas at Austin; Emanuel S. Heller Professor of Law at the University of California at Berkeley; and a nonresident senior fellow at the American Enterprise Institute. He is a co-author of the just-released two-volume American Constitutional Law (Routledge, 2026).