Photo: Henrika Martinez/AFP via Getty Images.
Photo: Henrika Martinez/AFP via Getty Images.

DOJ says Abbott cannot define unlawful immigration at Mexico border as an 'invasion’


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According to a new court filing, the U.S. Justice Department is arguing that Texas Governor Abbott's anti-immigration actions meant to stop illegal crossings usurp the constitutional authority of the federal government and also he has no constitutional authority to define the flow of undocumented immigrants across the Rio Grande as an "invasion.” 

"Whether and when an 'invasion' occurs is a matter of foreign policy and national defense, which the Constitution specifically commits to the federal government," the Justice Department wrote in a 13-page brief that included nearly 150 pages of supporting material.

"An invasion is 'armed hostility from another political entity, such as another state or foreign country that is intending to overthrow the state’s government,'" the Justice Department added. 

Filed Wednesday in the Western District of Texas, the new filing is part of the ongoing litigation brought by the DOJ against the controversial Republican governor and the state of Texas over the placement of giant buoys in the Rio Grande near Eagle Pass to deter unlawful immigration. 

The Justice Department is asking Senior U.S. Judge David Alan Ezra ordered the buoys removed until the end of the trial, which has yet to begin. A hearing is set for Tuesday in Austin.

An earlier filing by lawyers for Abbott defended the floating barriers, saying state governors have powers to act without federal authority to defend against an ‘invasion.’ 

The governor has called the increase in unlawful border crossings along with transnational drug-trafficking, an invasion that threatens the state’s sovereignty.

"The federal government’s FAILURE to secure our border has forced Texas to protect its own territory against invasion by the Mexican drug cartels & mass illegal immigration," said in one tweet from his official government account.

In a "friend of the court" brief filed earlier this week by attorney Matt Crapo of the conservative Immigration Reform Law Institute in support of Texas' position, he compared Abbott's efforts to deter unlawful immigration, which the governor calls Operation Lone Star, to the waging of war. 

He added that Ezra should reject the DOJ’s request that the buoys be removed because "the Constitution explicitly recognizes that Texas retains its inherent authority to exercise war powers in the event of an invasion, and in doing so is not subject to the control of Congress."

According to the most recent filing, the DOJ argues that the buoys are in violation of the Rivers and Harbors Act of 1899, which prohibits "the construction of any structure in or over any navigable water" without the approval of the U.S. Army Corps of Engineers and also undermines U.S.-Mexico relations.

"The harm to the United States’ conduct of foreign relations is immediate and ongoing, as the evidence shows," the filing says. "Texas’s conduct is already 'the subject of diplomatic concern' between Mexico and the United States," and has concretely disrupted the countries’ cooperative efforts to manage the delivery of water to the United States.

"That the harm might become worse without injunctive relief does not mean no harm is occurring now. Only the prompt removal of the entire Floating Barrier will remedy this harm."

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