It’s Texas versus Joe Biden on Control of the Southern Border. Who’s right?

The Constitution does not mention immigration.

So, in this fight between Governor Greg Abbott and Joe Biden, where does Biden get the idea that he’s in control?  Actually, he’s not.  What powers the Constitution grants are to Congress, and the president’s role is to enforce those laws.

There are two supporting clauses that give hope to both sides. 

The “Naturalization Clause” grants powers to Congress that court decisions have expanded to cover immigration.  The “Guarantee Clause” promises that states shall be protected against invasion.

Biden is relying on the argument that naturalization encompasses immigration and that he is enforcing existing laws.  Abbott has declared an invasion, and if he’s right, he may prevail.

Random Samplings is brought to you by the Texas Public Policy Foundation.

It comes down to three questions:

First, in spite of what court have ruled, does Congress’ power over naturalization imply power over immigration?

Second, is Joe Biden enforcing the laws that Congress has passed – noting that both he and former President Trump issued executive orders which do not carry the power of law in a strict interpretation of the Constitution?

Third, is it enough that Abbott has declared an invasion, based on what the Framers actually meant by that term?

The Naturalization Clause

In Article I, Section 8, Clause 4. The Constitution says:

“The Congress shall have power to establish a uniform rule of naturalization.”

Naturalization, of course is the process by which a citizen of another country presumably tosses that aside to become a citizen of the United States.  It is the process of investing citizenship in aliens, and it must not be taken lightly.  It is, however.

The invaluable Heritage Guide to the Constitution (Regnery, 2005)

As Joseph Bessette writes in The Heritage Guide to the Constitution, so-called “dual citizenship” has become the norm.  According to Bessette, since 1795, Congress required that all candidates for U.S. citizenship ship must formally renounce their allegiance to their native country.  That’s still in our laws and still part of the citizenship oath.  But it doesn’t seem to matter much, as U.S. citizenship has been cheapened.  Bessette goes on to say that millions of Americans are also citizens of other countries, whose native countries don’t even recognize any renunciation of loyalties.

And then, there’s birthright citizenship. 

A woman sneaks into Texas to have a baby, and her child is automatically a U.S. citizen – according to the courts, but not to the Constitution as evidenced in the Fourteenth Amendment.  In addition, some Americans are the children of one American parent and one foreign parent, and according to Bessette, derive citizenship from both.  It’s a mess.  And since naturalization has become blurred in the courts, so has immigration.

Abbott’s position is bolstered by the fact that naturalization and immigration are, by definition, two different things.  But Biden is helped by the fact that courts have tied them together.   Biden can refer to long-standing Supreme Court rulings giving “plenary” power over immigration to Congress to decide what foreign nationals can enter and stay in the United States.

The question whether Biden – or Trump – can make immigration law by executive order may stand with which side you are on.  My point of view is that such executive orders are illegal under constitutional separation of powers.

The question of whether Joe Biden [whom I will not refer to as President] has faithfully executed our laws seems obvious.  Illegal immigration is, you know – illegal.  By opening the borders, Joe Biden is not enforcing the law, and therefore could and likely ought to be impeached and removed for it.  That’s true regardless of which party controls Congress.

The Guarantee Clause

Now, we move to Article IV, Section 4, which states:

“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion…”

A “Republican” form of government simply meant that the federal government would be accountable to the people – or those who vote, and that there be no king or queen to rule us.  In The Heritage Guide to the Constitution, Robert G. Natelson writes that the part about invasion was designed to prevent a “sectional” president from refusing to defend certain parts of the United States from foreign attack.

In a paper entitled “The Meaning of Invasion Under the Compact Clause of the U.S. Constitution,” the Texas Public Policy Foundation’s Joshua Treviño (November 29, 2022) writes about what the Framers believed would constitute an invasion.  He aimed to clarify whether a U.S. state has the constitutional right to use its military powers to defend itself from such an invasion—pending an appeal to Congress for its decision and aid.  Here are his key points:

• The American history of the term “invasion” reveals that its literal meaning is entry plus enmity: Entry alone, which is trespass, is not sufficient to constitute an invasion.
• Although the Framers occasionally used “invade” in a metaphorical sense, we know that in the Compact Clause they used the word in its literal sense, because that clause’s ancestor text in the Articles of Confederation refers to invasion “by enemies.”
• Past non-state actors, like pirates and barbarians, fell under the category of “invaders” in the opinion of certain American statesmen, such as Madison.
• Present-day non-state actors, like cartel-affiliated gangs operating within the territory of a U.S. state, may fall under the category of invaders, provided their criminal activity reaches a scale or degree of organization that deliberately overthrows or curtails the lawful sovereignty of the state.

How does his relate to Abbott versus Biden in today’s border crisis?

Like so much in current American politics, it may come down to which side you are on.  The Framers may have envisioned an invasion, say from Spain or England – a fighting force from a single country attempting to overthrow the United States.  But today, we’re seeing “migrants,” as they are termed in the Mainstream Media, from a plethora of countries.

And what about “enmity?” 

Those who are coming for jobs or for asylum might not be classified as enemies, but what about the cartels, the gangs, the terrorists, the human traffickers, the criminals, and those who come across bringing deadly diseases with them?  These are the people that Biden ignores in his zeal to transform America.

So, who’s right – Abbott or Biden?

When the mayors of America’s largest cities complain about the open borders, you know there’s a problem.  The answer seems simple: enforce the law.  Biden isn’t going to do that; he’s made it clear in words and actions.  Texas Governor Greg Abbott is looking at the reality on the ground and saying that Biden must be stopped.

The only real solution, other than voting in a new administration with a different point of view, is to impeach Biden and remove him.  That is not practical since a Democrat-controlled Senate would not convict him.

Biden likely will win on the basis of Supreme Court precedent, as evidenced by the recent High Court opinion over razor wire.  Two conservative justices – Chief Justice John Roberts and Amy Coney Barrett – joined the three court liberals to hand a victory to Joe Biden.  If they were ruling on the basis of constitutional law and precedent, they can hardly be criticized for their opinions.

There is a however, however.  People are entering the United States by the millions, they are coming here illegally, and the current occupant of the White House is not lifting a hand to stop it.  On the question of the unilateral transformation of the United States of America without anyone voting on it, Abbott has the high ground.

The word for a head-of-state that makes life-altering, consequential decisions on his own, often going against the best interests of the people is:  dictator.  All things considered, Biden may not have the Constitution completely on his side, but he likely has the courts.  That means the upcoming election will be the final opportunity to remove him from office and restore the rule of law to our immigration system.

Lynn Woolley is a Texas-based author, broadcaster, and songwriter.  Follow his podcast at https://www.PlanetLogic.us.  Check out his author’s page at https://www.Amazon.com/author/lynnwoolley.  Order books direct from Lynn at https://PlanetLogicPress.Square.Site.  Email Lynn at lwoolley9189@gmail.com.

It is perfectly constitutional to order this book.