Conservatives seek 'invasion' opinion from Texas AG Paxton

One year after the border security effort Operation Lone Star was launched by Gov. Greg Abbott, Texas Attorney General Ken Paxton still hasn’t issued a legal opinion on border security.

That speaks volumes, his critics argue, especially since the Arizona attorney general issued an opinion on the matter last month.

Both Arizona and Texas have been inundated with Mexican cartel-related violence and other crime for years. But it ramped up after President Joe Biden implemented an open border policy and suspended some existing immigration laws. Mexican transnational criminal organizations now maintain operational control of parts of the southern border, law enforcement agencies have said, on both the Mexican and U.S. side. They’ve expanded operations into border community towns and major cities.

Both Texas and Arizona have reported an unprecedented volume of narcotics flooding their states, leading to fentanyl poisonings. While multi-agency law enforcement efforts have resulted in record drug arrests and ongoing attempts to crack down on human smuggling and other crimes, they are limited.

In response, Paxton has sued the Biden administration nine times over alleged immigration law violations. His office has also published an information packet as a resource for Texans to understand immigration case law. He’s also been an advocate of law enforcement efforts statewide as long as he’s been in office.

Since last January, roughly 2 million people have been apprehended entering the U.S. southern border illegally from over 150 countries. The number excludes “gotaways,” those who evade capture of law enforcement, which is estimated to be in the hundreds of thousands.

While Paxton has called on Biden to follow the law, the reality is that Texans have been dealing with illegal immigration, and the cartels, for decades. But it’s gotten far worse over the past year, Texas state and local law enforcement officials say. Paxton also sued the Obama administration under which illegal immigration also drained Texas resources and cartel violence and crime increased.

One thing Paxton hasn’t done, critics argue, is issue a legal opinion on Texas’ sovereignty, provide a definition of “invasion,” and on key constitutional clauses that define a state’s right to act, critics point out. They include Article 1, Section 10, Clause 3; Article 4, Section 4; and the 10th Amendment, of the U.S. Constitution.

The only elected official to issue such an opinion is Republican Arizona Attorney General Mark Brnovich.

The importance of an attorney general’s legal opinion is that it has the effect of law unless a court or the legislature overturns it, Texas Congressman Louie Gohmert told The Center Square. The nine-term congressman and former judge ran against Paxton in the Republican primary and lost.

“When the courts have not issued an opinion on an important issue, then the attorney general’s opinion has the effect of law until a court overturns it,” he said.

Brnovich was the first attorney general in U.S. history to issue a legal opinion on the definition of an invasion. He argues the Biden administration has failed in its obligation to protect Arizona from an invasion under Article IV, Section 4 of the U.S. Constitution.

He says the governor, as commander-in-chief, has the independent authority under the state self-defense clause of the constitution to defend Arizona from an invasion.

“The on-the-ground violence and lawlessness at Arizona’s border caused by cartels and gangs is extensive, well-documented, and persistent. It can satisfy the definition of ‘actually invaded’ and ‘invasion’ under the U.S. Constitution,” Brnovich’s legal opinion states.

“There is nothing in federal constitutional or statutory law authorizing the federal executive to thwart states from ensuring on-the-ground safety and an orderly border within the state’s own territory,” Brnovich wrote. “Nor is there any conflict with this and the orderly conduct of immigration policy by the federal executive. No state should be put in the position that Arizona and other border states have been put in through the federal government’s recent actions.

“The federal government is failing to fulfill its duty under Article IV, Section 4 of the Constitution to defend the States from invasion. The State Self-Defense Clause exists precisely for situations such as the present, to ensure that states are not left helpless.”

What applies to Arizona also applies to Texas, but Paxton hasn't addressed the issue during his two terms in office, critics point out.

Kinney County Attorney Brent Smith asked Paxton’s office for a response to Brnovich’s opinion and hasn’t received one, he told The Center Square.

“Attorney General Paxton has worked hard protecting the liberties of Texans by filing numerous lawsuits against President Biden and the unlawful policies of the Department of Homeland Security,” Smith told The Center Square.

However, “it’s disconcerting that his office has not yet taken a position on the recent opinion issued by the Arizona Attorney General’s Office. The opinion drafted by Mr. Brnovich is extensively researched and clearly supported by the Constitution. I believe it sets forth a clear road map for Texas to implement a solution to our ongoing border crisis, however General Paxton must first issue a similar opinion to have any legal effect in the state. Texas is running out of time.”

When asked if Paxton would be issuing a similar opinion to Brnovich’s, Paxton’s press office didn’t respond.

Lt. Col. Allen West (Ret.), who ran against Abbott in the Republican primary and lost, also argues that Texas has a right to defend itself under these clauses. While lawsuits are important and have value, West said, they aren’t an adequate response to an invasion.

“When you are being invaded, it is time for action,” he said.