Several candidates for Governor of Texas have promised to use the Texas National Guard to capture and deport people crossing the border illegally from Mexico. Does the governor have the legal authority to do so?
Let’s start with some possibly-relevant provisions of the U. S. Constitution. (Emphasis added.)
U. S. Constitution, Article I, Section 8
The Congress shall have Power . . . To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; . . .
In assigning Congress the power to provide for regulating land forces and for calling forth the militia to repel invasions, this section does not prevent states from also doing so. So a state might call-forth the militia to repel an invasion, so long as it is done in accordance with applicable federal law. When we consider this in the context of Article I, Section 10, and the 10th Amendment, any federal law that prevented a state from defending itself from invasion would probably be unconstitutional.
U. S. Constitution, Article I, Section 10: Powers Denied to the States
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 section is often cited by those demanding the governor capture and deport illegal immigrants. When read in conjunction with the 10th Amendment, this seems to imply that a state may engage in war without the consent of Congress if actually invaded or if in imminent danger. Once a state is engaged in war, the portion about keeping troops in time of peace is not longer relevant. This raises the question, is Texas being actually invaded?
U. S. Constitution, Article II, Section 2
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; . . .
This section has no direct bearing on the authority of a state to defend itself from invasion, but leaves the possibility that the president might interfere with the ability of a state to defend itself. For example, the president could call the state militia into the service of the United States, and assign them other duties. This might also allow the president to order the army to take custody of the prisoners of war captured by the state while fighting the invasion, effectively preventing the state from deporting them.
U. S. Constitution, Article IV, Section 4
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.
Specifically ordering the federal government to use its resources to protect states from invasion does not necessarily prevent a state from protecting itself from invasion.
U. S. Constitution, Second Amendment
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
This amendment addresses the right of the people and does not appear to affect the powers of the state to defend from invasion.
U. S. Constitution, Sixth Amendment
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Entering the United States illegally is a crime. But if illegal immigration is an invasion, one might claim captured illegal immigrants as prisoners of war, rather than criminals. If we treat illegal immigrants as criminals, then we must offer them due-process of law as described by the Sixth Amendment. But the U. S. Constitution does not address prisoners of war. Traditionally prisoners of war have been released at the end of the war. During the Civil War many prisoners were traded back to the the opposition with a promise that they would not return to fighting. Returning war prisoners to their home countries might be considered similar to deporting illegal immigrants, but this is not clear.
U. S. Constitution, Tenth Amendment
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.
The U. S. Constitution delegates the power to repel invasion both to the federal government and to the states. Although the Constitution allows Congress to make laws concerning this power and designates the president commander in chief under certain conditions, the Tenth Amendment seems to make it clear that Congress and the president do not have the authority to prevent a state from repelling an invasion.
The Texas Constitution also addresses the issue.
The Texas Constitution, Article 4, Section 7
GOVERNOR AS COMMANDER-IN-CHIEF OF MILITARY FORCES. He shall be Commander-in-Chief of the military forces of the State, except when they are called into actual service of the United States. He shall have power to call forth the militia to execute the laws of the State, to suppress insurrections, and to repel invasions.
This clearly says the governor has the power to use the militia to repel invasions.
Looking at the constitutions leaves us with two questions. Does illegal immigration constitute an “invasion” within the meaning of the constitutions? And, if so, what is the state allowed to do with the resulting prisoners?
One might find or make up various definitions for “invasion” but the only relevant definition is the one referred to by the writers of the constitutions. Henry Black’s legal dictionary is the most-trusted source for traditional meanings of common legal terms. The 2nd Edition of A Law Dictionary, by Henry Black, defines the term “invasion” as, “An encroachment upon the rights of another; the incursion of an army for conquest or plunder.” From context it seems clear that both constitutions are referring to the second meaning of “invasion,” the incursion of an army for conquest or plunder. In my opinion, an armed criminal gang crossing the border illegally would constitute such an “invasion,” and both constitutions authorize the state to repel such a gang militarily. It also seems clear that the average illegal immigrant is not participating an “invasion” by this definition. With regard to encroachment upon the rights of another, it would be difficult to identify exactly which rights are encroached by someone who comes into the country to work. I do not believe a typical illegal immigrant coming to find work is participating in an “invasion” by either part of this definition.
Let us assume that someone does successfully make the case that illegal immigration constitutes an invasion and that state military force is authorized to repel the invasion. Would the state be allowed to deport the prisoners of war?
Article I, Section 10, of the U. S. Constitution makes clear that a state may not enter into an agreement with a foreign country without congressional approval. So a state cannot, on its own, enter into an agreement with another country to accept deported prisoners. Deporting prisoners without an agreement with the receiving country might be interpreted by that country as an “invasion,” particularly if the individuals are not citizens of the receiving country; however if a state of “war” exists due to an “invasion” of the state, the constitutions do not appear to forbid such deportations. But any war or deportation carried out by a state may not be done in a way that violates an applicable federal law pursuant to Article I, Section 8, or treaty pursuant to Article II, Section 2, of the U. S. Constitution. I have not looked into existing federal laws and treaties addressing treatment of prisoners of war or deportation. Neither have I looked into court decisions related to these issues.
To summarize, I do not believe the U. S. Constitution or the Texas State Constitution authorizes the Governor of Texas to capture and deport the illegal immigrants pouring across our southern border, other than the members of criminal gangs. It appears that Congress could grant that authority to state governors by law if they chose to do so.
I am not a lawyer, though I worked thirty years in jobs that required interpreting and explaining laws and regulations.