As I have been urging Texas legislators to declare a border invasion so that Texas can actually #RepelRemove invaders and withstand a challenge to that action at the Supreme Court, the most common question I have gotten is, “When the Constitution talks about an invasion, who does it contemplate making that declaration?  The governor?  Or the Texas legislature?”

And I ran into a knowledgeable commentator this weekend who said that some people think that only the governor can declare an invasion of a state.  I disagree with that view.  Here are the reasons.

First, let’s take a look at Article IV, Sec. 4, Clause 4 of the U.S. Constitution, which says:

“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

This provision was put in for a situation that the framers expected, where the federal government actually wanted to do its constitutional duty.  And when a state wanted to formally ask for assistance from the federal government (at least in cases of domestic violence), the legislature was the first choice and the governor the backup.  From that angle, at least, it appears that the framers thought that the state legislatures – as the representatives of the people -- were the proper place to set policy.

Second, let’s look at the section of the Constitution which sets limits on state action, Article I, Sec. 10, Clause 3 to see what it says about this issue:

“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.”

This is the clause that tells us that Texas is free to take action without federal constraint when we are in imminent danger or being actually invaded.

Combine that with the Tenth Amendment, which says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Who decides who can declare the state in imminent danger or that it is actually being invaded?  From Tenth Amendment logic, is the federal government delegated the power to say how a state will declare an invasion or imminent danger?  Answer:  No.  Are the states prohibited from using any method of declaring invasion or imminent danger?  Answer:  No.  So, the each individual state (respectively means individually or unilaterally) has the final decision on how it will declare an invasion or imminent danger.

And there is one other perspective on who decides monumental issues like imminent danger/invasion – the Texas Constitution.  In the Legislative Department, Article 2 of the Texas Constitution, we find this:

“Sec. 62.  CONTINUITY OF STATE AND LOCAL GOVERNMENTAL OPERATIONS FOLLOWING ENEMY ATTACK.  (a) The Legislature, in order to insure continuity of state and local governmental operations in periods of emergency resulting from disasters caused by enemy attack, shall have the power and the immediate duty to provide for prompt and temporary succession to the powers and duties of public offices, of whatever nature and whether filled by election or appointment, the incumbents of which may become unavailable for carrying on the powers and duties of such offices. . .”

In other words, the Texas framers put major policy decisions about governmental actions during enemy attack into the hands of the Texas Legislature.  Enemy attack sounds a lot like invasion to me.

And, who delegates emergency power to the governor in the Texas Emergency Act and the Texas Disaster Act?  Of course, it is the legislature.  The legislature has the power to set policy and create law.  It is the ultimate authority that delegates authority to others.  In our system of government, the ultimate authority is the people and their representatives in the legislature.

My bottom line is that the constitutional language leans toward a legislative invasion being preferred, but states can do what they want, and a gubernatorial declaration works, too.  Just because the president won't do his job and the governor does not do his does not take the Texas legislature off the hook.  Far from it, it puts the Texas Legislature front and center in this crisis.

Why is all this invasion discussion important?  It’s because the U.S. Supreme Court said in a case called U.S. v. Arizona that when it comes to immigration, federal law preempts state law.

This puts us in the situation where the federal government tells Texans that they are in charge of immigration, and that we cannot do anything about immigration, but then proceed to not only do nothing about violations of federal immigration law, but become active violators of the law using our tax dollars in partnership with the human trafficking business with the cartels.

Texas desperately needs a way to act to stop the imminent danger to Texans caused by federal failure.  And if we declare invasion and/or imminent danger, we are liberated to do what we need to do to solve the problem.  When someone hauls Texas into federal court over Texas doing what must be done, we will point out to the Supreme Court that we are not in immigration territory, but in invasion territory, constitutionally, and the Supreme Court is likely to agree.

Click here to see the 2023 Legislative Agenda of Texas Constitutional Enforcement.