Status Report on Border Security Efforts at the Texas Legislature

March 11, 2023

What a ride this has been this week on border security at the Texas legislature!

I said last weekend on social media that this week would determine the fait of millions.  I did not get everything that those of us who care about Texas border security wanted this week, but I think what we got this week will save the lives of tens of thousands and improve the lives of millions in the future.

We got two pieces of huge news this week on border security.  First, on Monday, March 6, 2023, fittingly the anniversary of another heroic day in Texas history (the fall of the Alamo), State Senator Lois Kolkhorst filed SCR 23, a legislative declaration of invasion by the cartels and “danger of irreparable harm.”  By the end of the week, two freshmen State Reps, Ben Bumgarner and Mark Dorazio had filed House companions (HCR 78 and HCR 79, respectively).

Second, yesterday, the bill filing deadline, Speaker Dade Phelan announced that he is making a suite of new border security bills his priority.  The most important of those bills is HB 20 by Rep Matt Schaefer.

Both approaches invoke the spirit of the second sentence of the RPT Border Security Legislative Priority.

Senator Lois Kolkhorst’s Legislative Declaration of Cartel Invasion

Senator Kolkhorst’s SCR 23 declaration does three things:

• Calls on feds to declare cartels a terrorist organization
• Finds that Texas has been invaded by foreign drug cartels and that Texans are “in danger of irreparable harm.”
• Invokes/encourages all state and local resources to use Art I, Sec 10 authority to repel the cartel invasion

Representative Matt Schaefer’s Comprehensive HB 20

The broad and deep HB 20 does the following:

• Sets up constitutional, independent action by Texas to take effective action by invoking Article I, Sec 3, Clause 3 reservation of self-defense power to the states when we are “in such imminent danger as will not admit of delay” or “unless actually invaded.” HB 20 formally declares that we are in imminent danger under that clause.  Note that this will be a combined declaration by the legislature and the governor.
• Creates a Border Protection Unit that will report directly report to the governor, thereby taking pressure of the volunteer resources of the Texas National Guard and the stress on DPS when they are redeployed from protecting their communities to the border.
• Repel - Authorizes the Border Protection Unit to “deter and repel persons attempting to enter the State of Texas illegally at locations outside a port of entry,” to “return aliens to Mexico who have been observed actually crossing the Mexican border illegally, and were apprehended or detained in the immediate vicinity of the border,” and to “use force to repel, arrest, and detain known transnational cartel operatives in the border region.”
• Creates beefed up border trespass offense in the Penal Code – makes it a third degree felony and subject to $10K civil penalty each time a “person knowingly enters property of another without effective consent when knowingly entering the state of Texas from a neighboring jurisdiction.”
• Creates another constitutional way for Texas to act independently by invoking constitutionally clear state authority to protect health. HB 20 incorporates the totality of HB 1491 filed earlier by Rep Brian Harrison.  It allows Texas to remove those who cross into Texas outside a port of entry as long as the feds have a vaccination mandate for anyone and “at any time which the U.S. Department of State has a travel-warning for COVID-19 for any country from which citizens have illegally entered the U.S. during the most recent year for which there is available data.”
• Creates a standing Legislative Border Safety Oversight Committee.

Why We Need this Legislation

I have been making sure that people understand why we need a declaration of imminent danger or invasion.  That reason is that the US Supreme Court opinion in US v Arizona said in essence that the federal government pre-empts immigration issues.  Because the federal government is failing to enforce federal immigration law in a way that subsidizes the cartel human trafficking business and in a way that is allowing all other sorts of danger to be unleashed on Texans, we are searching for other ways under the U.S. Constitution that Texas can act to independently (i.e., without legal federal interference) protect the people of Texas.

In other words, we need a way that the Constitution and precedent at the U.S. Supreme Court has said reserves power to Texas to defend its citizens from the fentanyl poisoning deaths, the sexual trafficking, the violation of property rights, and the potential terrorist attacks from our uncontrolled border.

HB 20 presents three methods that move us away from “immigration land.”  First, it uses Art. I, Sec. 10, Clause 3, which is about public safety, not immigration.  Second, it moves us into public health, for which the structure of the Constitution, the Tenth Amendment, and Supreme Court precedent says Texas has independent authority.  And finally, it implements state law against trespass in a way that is independent of immigration.  The bill does nothing about what the federal government does about immigration at our ports of entry.  It ensures that the feds keep control over immigration without Texas getting involved in immigration decisions or law enforcement.

Note that we in Texas Constitutional Enforcement have been urging both repel AND removal of those who got past our repel efforts.  Schaefer has recognized that the argument that we are not interfering with federal immigration enforcement is much stronger if we do not include the remove piece.  Removal also gets into serious civil liberties and due process problems, including profiling of Texans that has been a major part of the objection to immigration enforcement.  I am now convinced that repel-only is more defendable and will get the bulk of the job done of protecting Texans.

The Experienced, Skilled, Courageous Leadership of Matt Schaefer

Matt Schaefer became recognized last session as a powerfully effective leader for conservatives with his leadership in getting constitutional carry passed.  He is applying that political capital and the skills learned to border security this session, and I think he will outdo his last session triumph this session.

Note how Rep. Schaefer has secured the favor of not only the speaker, but of the governor, in the crafting of this bill.  Schaefer tweeted last week a picture of himself in his meeting with the governor.  I have always advocated for making clear that Texas is the master and the feds are the servant in our federal republic.  One of the reasons why I chose to get involved in the border issue this year is the clear necessity of independent action by Texas that is potentially in conflict with our lawless federal government.

But Texas elected leadership has been cautious about engaging in action which will create friction with the feds.  Schaefer has crafted a bill that gets the job done in enabling Texas to protect Texans while staying as far away from the shoals of federal confrontation as possible.  Note that HB 20 only declares “imminent danger,” not “actual invasion” by the cartels that exists in Senator Kolkhorst’s SCR 23.  I suspect that Schaefer’s effective and firm, but as non-confrontational as possible approach is what sold the speaker and the governor.  It will likely sell many Democrats as well.  More and more border Democrats understand that their constituents are being devastated by the lawlessness at the border.  Doing something effective that helps their constituents without exposing Texans to potential governmental harassment may win their support.

How Will the Different Approaches by the House and Senate be Reconciled?

I do not yet know how the differing approaches between the House and the Senate will play out.  And I have not yet decided how to play on that.  At the moment, I want both SCR 23 AND HB 20.  If I had to pick between them, I would choose HB 20 because it provides an organization, a statute to get the job, in addition to a minimalist declaration.

I have been advocating a legislative declaration AND a statute requiring repel and remove.  I note that the bill I had crafted with Kinney County County Attorney Brent Smith for that and shopped was also filed this week by freshman State Rep Richard Hayes (HB 4368).  Rep Hayes’ staff filed the bill saying they intended to strip out the removal piece before a committee hearing.  I much appreciate that leadership of Texas Freedom Caucus member Rep Hayes, but suspect that the repel piece of HB 20 will what will get the committee hearing, given its priority status by the Speaker and the fact that the leader of his caucus filed HB 20.  If HB 20 is passed, we don’t need HB 4368.

If we only pass SCR 23, I think we need a repel bill like HB 4368 to complete the job.  But I was told by one member of the Senate Border Security Committee that he did not want to lead on a repel bill, but would wait to see what came from the House.  I suspect that he and Senator Kolkhorst had been given a heads up on Schaefer’s leadership.  I noted to Lieutenant Governor Patrick’s border security staff that border security was conspicuously absent from his priority list.  The response was that the lieutenant governor is working to ensure that sufficient funding goes to border security.  I replied that using large amounts of money on an approach that has yet to produce results is not the path to success.  We need the money, but it needs to be spent differently.  But because I have reason to believe that he knew what the House was planning, I have no reason to believe that the lieutenant governor or the Senate will get in the way of the HB 20 approach once it passes out of the House and makes it to them.

And even though Rep Schaefer is for legitimate reasons taking a low-key approach on his declaration, I believe that a formal declaration is better with a comprehensive list of arguments for the decision similar to the Declaration of Independence.  A declaration is the opening argument of the Texas case when we are hauled into federal court by those determined to stop our independent action without seeking permission, as sovereigns should do.  When you are in court, you want every argument presented you can because you never know what will catch the judiciary’s fancy.  That is why I really want in addition to HB 20 a declaration like Kolkhorst’s that gives BOTH actual invasion and imminent danger as the reasons for our action.

Other Issues

I did not get any takers this week for a comprehensive denial of Texas taxpayer services to illegal aliens (the first sentence of the RPT Legislative Priority).  However, Freshman State Rep Ellen Troxclair has filed HB 2240 and HB 2241 which stop Texas housing assistance and legal assistance, respectively, to illegals.

Senator Bob Hall (SB 237) is working interstate compacts to supplement Texas resources in stopping the border chaos.  In the House, Homeland Security & Public Services Chair Ryan Guillen has a different variant (HB 2396) and Representative David Spiller has introduced the Hall companion as HB 82.

There are several other border-related bills that I am tracking (including the ones designated as priorities by the speaker), but this piece is already way too long.

We will be watching for the hearings on these bills, and I expect there will be a large turnout for them.  Will try to keep this email list posted.

Toward liberty,

Tom Glass
Texas Constitutional Enforcement
www.txce.org
832-472-4726
info at tomglass.org