Republican presidential candidate Florida Gov. Ron DeSantis speaks during a town hall meeting in Eagle Pass, Texas, Monday, June 26, 2023. (AP Photo/Eric Gay)

“I think the state of Texas has a right to declare an invasion,” said Florida Governor Ron DeSantis last week during an immigration policy town hall near the Mexican border. Responding to a voter claiming America is being “invaded” and asking, “Why haven’t we acted,” DeSantis replied, “I think states have a right to come in and help repel the invasion. Certainly, when I’m president, your state people here will be able to deport across the border, 100 percent. But I think they should be doing that right now.” 

DeSantis was not using incendiary language just to be edgy. He was embracing a ridiculous yet dangerous constitutional theory, long touted in nativist circles, bestowing military power on state governments so they could enforce their own border policies in defiance of the federal government.  

And at the same time, DeSantis was throwing shade at Texas Governor Greg Abbott for not aggressively asserting that power. 

Where does this crank legal theory come from? Article I, Section 10 of the Constitution lists several actions state governments cannot take. The third clause reads: 

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. 

In other words, states can’t wage wars or impose tariffs. 

A group of anti-immigrant conservatives has tried to twist the emergency provision— “unless actually invaded”—into a subversion of the Founders’ intent by histrionically labeling an influx of migrants an “invasion.”  

Such creative linguistics should offend “strict constructionist” conservatives who swear fealty to originalism and textualism. Migrants who cross the border to find work are not conquering armies. But there is also a long history of bigoted forces asserting “states’ rights” to violate individual rights and undermine federal power. 

Back in 2010, Republican-controlled Arizona passed a law giving police wide-ranging authority to accost and arrest undocumented immigrants. The Justice Department under Barack Obama’s administration challenged the statute as an unconstitutional encroachment on the federal government’s authority to implement immigration policies. The case went to the Supreme Court. 

One legal brief, organized by a far-right group called State Legislators for Legal Immigration, defended the Arizona law because the state was “faced with a veritable horde of foreign invaders from the south” and “Article I, Section 10 expressly reserved to the states the power to defend themselves against invaders.” That distortive view was stretched to fun-house mirror proportions: “The express reservation of power in the states to repel an invasion need not await an actual invasion, nor a declaration of war.” 

When defending the law, Arizona did not adopt this specific line of argument. Nor was it accepted by the Supreme Court. In 2012, a 5-3 majority struck down most of the law. But in a solo dissent, Justice Antonin Scalia—straying far from his originalist creed—cited the “unless actually invaded” phrase as proof of the state’s “inherent power to protect their territory,” and declared that Arizonans “feel themselves under siege by large numbers of illegal immigrants who invade their property.” 

The Court’s decision did not stop conservatives from urging Republican-run border states to act independently. In 2014, Texas Governor Rick Perry sent 1,000 National Guard members to the border. The troops lacked the power to arrest undocumented migrants and often had nothing to do. Yet Perry was cheered on by Ken Cuccinelli, who had been a member of State Legislators for Legal Immigration and had just finished his term as Virginia Attorney General. (Later, he became Donald Trump’s director of U.S. Citizenship and Immigration Services.)  

Cuccinelli defended Perry’s move based on the invasion clause. “Article One, Section 10, Clause 3 says states can’t enter into treaties or wage war except when actually invaded. Obviously, we all know what Governor Perry’s been doing lately,” Cuccinelli said. “Understand that he has absolute constitutional authority, and the federal government cannot stop him. They cannot stop him.”  

But Perry didn’t test the bounds of his constitutional authority by instructing Guardsmen to deport the undocumented.  

Conservative interest in the invasion clause fell off during the Trump administration, then revived after Joe Biden’s inauguration. For example, in June 2021, the U.S. House considered a resolution that “recognizes and affirms the sovereign and unilateral authority explicitly reserved to the States, respectively, under Article I, Section 10 of the United States Constitution to defend themselves against the invasion by cartels.” A few months later, Cuccinelli—from his perch at the Center for Renewing America, a think tank created by former Trump administration officials—issued a policy paper detailing the case for invoking the invasion clause. Arizona’s Republican gubernatorial nominee in 2022, Kari Lake, declared, “We’re going to be invoking our inherent powers under Article I, Section 10 of the U.S. Constitution to defend ourselves from the invasion.” 

She lost, giving Arizona Democrats control of the governor’s office for the first time in 14 years. 

But Abbott won his third term as governor of Texas. During the campaign, in July 2022, he appeared to fulfill the fever dreams of the rabid nativists by issuing an executive order that charged Biden with failing to protect states “against invasion,” which “forced the State of Texas to … enter into agreements as described in Article I, § 10 of the U.S. Constitution.” He then ordered the Texas National Guard and Texas Department of Safety “to respond to this illegal immigration by apprehending immigrants who cross the border between ports of entry or commit other violations of federal law, and to return those illegal immigrants to the border at a port of entry.” 

Abbott didn’t heavily emphasize talk of “invasion” on the campaign trail, perhaps because of political sensitivities. Three years prior, a white supremacist from Allen, Texas, posted a manifesto warning of a “Hispanic invasion,” drove to an El Paso Walmart, and killed 23 people, most of whom were Latino.  

But soon after Abbott won re-election in November, he wrote formal letters to Texas officials detailing his border policies, emphasizing that he “invoked the Invasion Clauses.” He also posted a similar message on Twitter. 

Abbott’s tweet briefly enthralled right-wing hardliners, but disappointment quickly set in. The Texas Tribune explained: 

Many conservatives seemed to think that Abbott was introducing dramatic new measures. But soon it became clear that wasn’t entirely true. Abbott’s tweet was highlighting measures taken over more than a year. His mention of invoking an invasion was a reference to a line in a July executive order, in which Abbott directed state officials to bus migrants they had detained back to ports of entry along the border — but not to the other side. 

In fact, after Abbott’s July 2022 executive order, Cuccinelli and another former Trump official at the Center for Renewing America deemed it insufficient because “the Governor does not appear to formally declare an invasion nor direct [Texas law enforcement] to remove illegals across the border directly to Mexico.” 

Why won’t Abbott go as far as the far right would like? Last year he said he didn’t want to “expose law enforcement in the state of Texas to being prosecuted.” 

Frustration with Abbott has been percolating along the fringes ever since. The lead organizer of an April rally at the Texas state capitol told the Washington Examiner his objective was to pressure Abbott to declare an invasion formally. Featured rally speaker and celebrity activist Ted Nugent vented, “It dazzles most Texans that Governor Abbott has not secured the Texas border. He has expressed a willingness to engage on this issue, but there hasn’t been enough concrete action taken to actually solve the glaring crisis.” 

Cuccinelli recently appeared on Fox News and lit into Abbott: “He’s saying things like, We’re repelling people at the border. Look, that is B.S. Greg and I served as attorneys general together. He was an aggressive attorney general, and he is laying back with the authority to stop this … Sending soldiers to the border to watch people cross is a photo op. It is not repelling the invasion.” 

It so happens that Cuccinelli founded the Never Back Down super PAC supporting Ron DeSantis for president.  

Not only is DeSantis dancing to Cuccinelli’s tune when he supports the anti-immigrant, anti-originalist interpretation of Article I Section 10, but also when he throws shade at Abbott. 

Last year, ostensibly jockeying for position in the 2024 presidential contest, DeSantis and Abbott appeared to be competing for the prize of Governor Who Hates Immigrants the Most.  

Abbott spent months dumping thousands of migrants on the doorsteps of Democrat-run cities without warning. But DeSantis won far more media attention by sending an emissary into Texas, without Abbott’s knowledge, and duping a few dozen asylum-seekers into boarding a plane to Martha’s Vineyard. 

In 2021, DeSantis sent Florida law enforcement officials to the Texas and Arizona borders at the request of Abbott and then-Governor of Arizona Doug Ducey. But in June 2022, DeSantis chided Abbott (albeit not by name) for how the resources were being used: “We sent people last summer … but, you know, what would happen is they would let [migrants] come across and then you give them to the feds and the feds just release them … Texas should just send them back across the border … or not let them come across the border to begin with.” 

Abbott appears to have passed on running for President. Nevertheless, as last week’s comments show, DeSantis is still tweaking Abbott for not declaring an invasion and asserting the power to deport. Presumably, this is part of the DeSantis strategy to out-crazy Trump by appealing to every right-wing fringe constituency possible.  

While Republicans turn on each other, the Biden administration is quietly restoring order to the border. The New York Times reported on July 2 that “Since May 12, the average number of daily illegal crossings has been around 3,360, according to Department of Homeland Security data. In March 2022, that average was about 7,100.” Assuming that average held for the entire month of June, that month’s number of illegal crossings will be about 100,000, the lowest number of the Biden presidency and only a few thousand higher than recorded in the final months of the Trump presidency.” Biden has done this while expanding legal pathways to entry and improving the process for requesting asylum. 

Talk of invasion was always legal quackery and racist fearmongering. Now it’s increasingly out of touch with what’s happening on the ground. 

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Bill Scher is political writer at the Washington Monthly. He is the host of the history podcast When America Worked and the cohost of the bipartisan online show and podcast The DMZ. Follow Bill on Twitter @BillScher.