Op-Ed: Texas, as a sovereign state, has the right to defend its own borders; here’s what needs to happen now

Brent Smith | Kinney County Attorney

The sovereignty and territorial integrity of our borders is under siege by the illegal trafficking being carried out by the Mexican cartels. Vast amounts of drugs, children, and women are being sold and traded like livestock.

Kinney County law enforcement is overwhelmed with human smuggling and high-speed pursuits occurring along our highways and throughout our residential streets.

Our homes are broken into in the middle of the night. Residents can no longer walk outside after dark because it is no longer safe. Words cannot adequately describe the conditions on the ground that have resulted in the deaths of our citizens and tremendous amounts of property damage.

This crisis can quickly be resolved if the Biden administration actually enforced those immigration laws established by Congress, which he is legally obligated to faithfully execute under Article II, section 3, of the U.S. Constitution.

Not only is the Biden administration failing to enforce federal immigration laws, the administration itself is violating the actual laws that Congress passed that require the executive branch to detain and remove certain aliens, without exception.

Even though Gov. Greg Abbott did not create this crisis, his office has the legal authority to do much more than he has pledged thus far. As the Texas governor, Abbott has the sovereign authority to enforce the borders of Texas.

The U.S. Constitution does not grant the federal government the exclusive authority to enforce immigration policy. The only exclusive power granted to the federal government by the Constitution that is remotely related to immigration is the legislative function to “establish a uniform rule of naturalization.”

By granting this legislative role to Congress, the framers would ensure that the qualifications to become a citizen would be uniform throughout the states.

However, nowhere in the Constitution or any Congressional statute is immigration enforcement granted solely to the federal government. Supreme Court Justice Antonin Scalia expressed this same view by stating, “it seems to me entirely appropriate when the State uses the federal law (as it must) as the criterion for the exercise of its own power and the implementation of its own policies of excluding those who do not belong there.”

The state of Texas, as a sovereign political entity, has the inherent authority to enforce its own borders and protect its citizens. Article IV, Section 4 of the U.S. Constitution guarantees that the federal government shall protect each state of the Union against invasion. It is not voluntary.

It is a constitutional mandate created to guarantee the protection of all the states in the Union. Anticipating that the federal government at some point may not follow the constitutional mandate, the framers added something else, another guarantee for the states.

Under Article I, Section 10, Clause 3, the states reserved their sovereign authority to act in the protection of their citizens when threatened by “invasion or imminent harm.”

It is only logical to conclude that the authors of the U.S. Constitution included this expressed reservation of state sovereignty for times when the federal government is not able, or willing, to uphold its guarantee of protection under Article IV, Section 4. In other words, this reserved authority functions the same way as a “break the glass in case of emergency” scenario.

With no aid coming from Washington D.C., the people of Texas are now looking to Austin to uphold these protections guaranteed to us by the U.S. Constitution.

Gov. Abbott issued his own disaster declaration 40 days after Kinney County filed our own local state of disaster on April 21. It is no coincidence that we waited to file it on San Jacinto Day. So far, 34 counties have also filed their own disaster declarations.

In March, Abbott launched Operation Lonestar. Last week, he pledged that Texas would build its own wall and said the state will build high fences and barriers to help landowners in the interim. But this is not enough. It’s like formulating a plan for constructing a dam when the flood gates are already open.

Here are my own recommendations on what needs to be done now, that we’ve been requesting for months.

First, we need Texas military forces deployed on the ground near the border to aid our local law enforcement in apprehensions. They need to be granted the necessary authority by the governor that would allow them to protect themselves and aid law enforcement in apprehending criminals. We requested this on April 21. We still have not received it.

Second, we need air and ground assets that will allow us to pursue those illegal aliens who travel through our ranches on foot and avoid detection on the highways. The vast majority of illegal aliens entering our state don’t travel down the roadways and risk detection by DPS.

They instead simply walk across the border and travel north without any form of resistance from law enforcement. Currently, DPS has no way of preventing this from occurring since their enforcement authority is limited to roadways in Texas.

Texas law enforcement and those coming from other states need the same types of resources and equipment that Border Patrol has and would normally be using if their agents weren’t tasked with processing hundreds of thousands of people to only release them into the United States.

Third, the Texas legislature needs to invoke their sovereign authority reserved under Article I, Section 10, Clause 3, and empower Texas sheriffs to arrest, detain, and deport those illegal aliens who are not lawfully within the United States.

The constitutional rights of Texans must no longer be ignored and violated by our elected representatives in both Washington D.C. and Austin. The current status quo of our border is not sustainable. The border crisis that Texans are facing demands action now.

Brent Smith is the country attorney for Kinney County, Texas