Mon, Aug 1, 2022 8:41 AM
By Bethany Blankley, The Center Square
One explanation given by Texas Attorney General Ken Paxton’s office to not declare an invasion at the southern border is at odds with a legal analysis published by a Washington, D.C., think tank and of a Navy JAG officer and national security law expert.
Paxton's office’s interpretation of 18 USC 242, First Attorney General Brent Webster said last week, is one reason why Paxton won’t be declaring an invasion. The statute was established in 1886 after the Civil War and broadened in 1874 through the Fourteenth Amendment.
The statute, Webster said, “basically says if you violate someone’s rights under the color of the law and you cause their death, you’re subject to the death penalty yourself. No one’s explained how we get around that statute if we use war powers.”
Instead, Paxton’s office’s goal is to challenge a 2012 U.S. Supreme Court ruling, Arizona v. U.S., which is the “biggest problem to states stepping in and stopping this invasion and stopping this illegal immigration,” Webster said. In it, the majority of the court struck down portions of an Arizona law authorizing state law enforcement officers to make warrantless arrests of foreign nationals suspected of being in the U.S. illegally.
But Center for Renewing America argues the issue isn’t about immigration but about state sovereignty. Navy JAG officer and national security law analyst Jonathan Hullihan argues Supreme Court Justice Anthony Scalia’s dissent in Arizona actually predicted the need for Texas to declare an invasion.
The center’s extensive analysis of 18 USC 242 draws the opposite conclusion of Webster’s: federal law doesn’t criminalize the conduct of state officials when they act to repel an invasion.
The center argues that border states “have the ability … and … responsibility … to invoke their constitutional authority, explicitly stated in Article I, Section 10 of the Constitution to declare an invasion and secure the border, particularly in light of the federal government’s refusal to carry out its Article IV, Section 4 duties to the states to protect them from invasion.” It argues “Article I authority to declare and respond to an invasion is clear,” which Arizona AG Mark Brnovich’s historic opinion declaring an invasion affirmed.
While Gov. Greg Abbott has suggested that declaring an invasion could make Texas law enforcement officers and guardsmen susceptible to being detained and prosecuted by federal authorities “presumably under 18 U.S.C. § 242.4,” the center argues, “neither Article I of the Constitution, the statute’s text, its legislative history, nor its case law to date, justifies” such a concern. In other words, Section 242 doesn’t trump the U.S. Constitution.
Because of these and other factors, the center argues there doesn’t appear to be “a significant threat of such prosecutions in the event that a border-state governor declared an invasion and used state personnel” to repel it. “State agents removing invading aliens … to Mexico face a very-low risk of successful prosecution,” the analysis states. Neither the 14th Amendment nor Section 242 were designed to “hamper” states’ invasion responses or “cramp the powers of state officers responding to external invasions.”
Brnovich’s opinion addressed the presence of large-scale, stateless transnational criminal organizations facilitating an invasion using human, drug and weapons trafficking and smuggling as a “substantive justification for the invocation of Article I authority to repel that invasion.”
At least eight Texas counties and one city have declared an invasion, with more expected to follow. Abbott hasn’t declared an invasion although he’s taken unprecedented action to thwart criminal activity coming through the southern border.
If federal officials were to arrest state actors under Section 242, they’d face “numerous, unprecedented political, policy, logistical, and legal hurdles,” the center argues.
When it comes to Arizona, Hullihan says Scalia predicted in 2012 what is happening now. His dissent was “a cautionary prediction” that the federal government would leave border states unprotected. Scalia said the majority opinion “deprives states of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result.”
Arizona also “left open the question of whether states can detain aliens who violate federal immigration law, and it appears Texas policy and legal strategy is focused on this Constitutional framework and line of caselaw,” Hullihan says.
Abbott’s recent order cites the majority opinion “to avoid a legal pre-emption challenge” to his actions, Hullihan notes. But the Constitution’s Self-Defense Clause and Texas Constitution give Texas “the authority to act to protect the lives and liberty of our citizens, declare and repel invasions, and not be dependent on a litigation strategy that may or may not be successful,” he argues.
“The problem” with Abbott’s and Paxton’s approach, Hullihan said, is “every action or position being taken is from the viewpoint of state enforcement of federal immigration law,” when the issue isn’t about that. “As Scalia feared,” the federal government has left states helpless and the constitution gives them the right to defend themselves.
“The problem with the current strategy is a challenge to Arizona may or may not happen at some time in the distant future, which is certainly going to be too late when you consider the historic damage being done,” he said. As they plan for litigation, “the invasion continues,” he said, pointing to thousands of people smuggled and trafficked into Texas and thousands more killed by fentanyl.