Constitutional Loophole Propels Xenophobic Border Policies in Texas

by Shealeigh

The power to control United States immigration policy has belonged to the federal government since the 1800s. However, Texas legislation proposed in 2023 uses an “invasion clause” in the United States and Texas constitutions to challenge federal control in an unprecedented manner, according to legal experts, as reported by Erum Salam for the Guardian in May 2023. The legislation classifies migration at the Texas-Mexico border as a form of “invasion,” which reflects white supremacist fears rather than facts, according to immigrant rights organizations.  

Texas legislation HB4 would allow the state to arrest, jail, and deport migrants unlawfully residing in the country, rather than require officials to release them into federal custody. According to Kate Huddleston of Just Security, the bill “provides for no due process before such summary expulsion, and it does not provide any limit based on length of time a person has resided in the United States or proximity to the border,” allowing Texas’ border forces to legally ignore due process. 

The legislation is based on an interpretation of the Texas Constitution’s invasion clause, which authorizes the governor to deploy a “militia to execute the laws of the State, to suppress insurrections, and to repel invasions,” Salam writes. Although the US Constitution supersedes state law, it also restricts the power of states to maintain their own troops unless invaded. 

Migrant rights organizations say the term “invasion” does not apply since many crossing the border seek refugee status.  Barbara Hines, law professor and founder of the Immigration Clinic at the University of Texas Law School, cited in the Guardian, calls the state’s “justification for creating its own immigration laws ‘unprecedented and extreme.’”

The policy regards migrants at the Texas-Mexico border as public foreign enemies under the Constitution. According to the Guardian, Texas is “exploiting what it sees as a constitutional loophole around the definition of an ‘invasion’ but that migrants’ rights activists see as dangerously ramping up fears with racist language.” While Abbott and other right-wing politicians view this legislation as necessary to protect the state, critics point out the forceful and dangerous tactics used by border control in the name of protection. 

Beginning in November of 2022, Governor Abbott implemented the invasion clause, allowing the state of Texas to enact its own border control programs, such as Operation Lone Star. According to Human Rights Watch, “Dangerous chases of vehicles thought to contain migrants under Operation Lone Star have led to crashes that killed at least 74 people and injured at least another 189 in a 29-month period… The dead and injured included migrants and US citizens, including many bystanders.”

The Guardian reported that separate Texas legislation also proposed in 2023 would create a border force comprised of civilians, similar to Operation Lone Star, which would use gunboats, circular saw blades, and other measures that have already killed many. In an interview with Democracy Now!, Texas Congressmember Greg Casar criticized the dangerous action Governor Abbott has taken at the border to prevent crossing while diverting billions from Texas schools and infrastructure.

Governor Abbott has also received much backlash for the “inflammatory” connotation of describing immigrants as invaders. As Just Security pointed out, within Texas, the “‘great replacement’ conspiracy theory” that non-white immigrants are overwhelming the white and native-born population for political power reasons fuels white supremacist ideals, and even tragic hate crimes such as the 2019 El Paso mass shooting.

Senior advocacy manager of “Beyond the Border” under the Texas Civil Rights Project Roberto Lopez similarly told the Guardian, “This is all connected to this rhetoric of associating people who are trying to seek safety with being like a literal attack on the United States. That is just giving a lot of fire and energy to militia groups and people who are filled with hate.” 

According to John Knefel of Media Matters, conservative news outlets have fueled this fire by hiring former border police to report on immigration as “experts.” This trend has created a “border cop-to-pundit pipeline” that “masks xenophobia as hard-won knowledge about public safety.”  Consequently, unsubstantiated claims about immigrants as dangerous drug smugglers go unchecked.

However, NPR’s analysis of US Customs and Border Protection data reveals that 90 percent of the illicit fentanyl crossing the US border from Mexico between October 2022 and June 2023 was seized at points of legal entry. “Nearly all of that is smuggled by people who are legally authorized to cross the border, and more than half by U.S. citizens,” NPR reported, adding that “virtually none is seized from migrants seeking asylum.” 

As of March 2024, the controversial Texas immigration policy (HB4 would become SB4), allowing Texas officials to jail and prosecute suspected unauthorized migrants, was ruled constitutional by the US Supreme Court, CBS reported. Hours later it was ruled unconstitutional by the US District Court Judge David Ezra, “noting that immigration enforcement, including arrests and deportations, have long been a federal responsibility.” Further debate and legislative pushback could occur from both the Texas state government and the federal government. 

The extreme Texas border policies have received some corporate news coverage, including CBS, NBC, and CNN. However, it has failed to cover in depth the implications of these policies—particularly the racism and due process questions—that independent news sources include. 

An October 2023 NBC article focused more on the increased unlawful migration in other states, including those led by Democrats frustrated with federal policy, and how the issue is amplified on social media. Ending the piece with “someone like [Elon] Musk can highlight a topic like few can,” brought attention to celebrities hardly related to the issue. 

An October 2023 article by CNN focused solely on the tension between the Texas state government and the Biden administration over border policies, describing the situation as “the latest chapter of the legal saga between the state and the Biden administration over border security.” Both corporate news sources concentrate on general surface-level information without looking at the more harmful implications of these border policies.

Sources: 

Erum Salam, “Texas’s Use of ‘Invasion’ Clause against Immigrants Is Racist and Dangerous, Rights Groups Say,” The Guardian, May 29, 2023.

Texas Rep. Greg Casar Condemns Gov. Greg Abbott’s “Dangerous Stunts” at the Border,” Democracy Now!, August 30, 2023.

Kate Huddleston, “White Supremacist Conspiracy Theory is Fueling Extreme Border Policy in Texas,” Just Security, October 24, 2023.

John Knefel, “How the Border-Cop-to-Pundit Pipeline Fuels Anti-immigrant Coverage,” Media Matters, October 24, 2023.

“US: Texas Border Policies Threaten Deadly Outcomes,” Human Rights Watch, February 1, 2024.

Student Researcher: Olivia Jang (Loyola Marymount University)
Faculty Evaluator: Dr. Kyra Pearson (Loyola Marymount University)