Do Abbott and Ducey have authority to enforce immigration law?

Immigration at the southern border continues to surge. In July, border agents encountered 199,976 immigrants on the southern border. Agents encountered 207,426 in June; the fourth month in a row with more than 200,000. 

The governors of Arizona and Texas are not happy with the federal government’s response and are now enforcing immigration law on their own.

Arizona Attorney General Mark Brnovich, R, asked Republican Gov. Doug Ducey to make an official declaration that there is an invasion happening at the state’s southern border. In a legal opinion, Brnovich wrote the invasion designation is needed so Arizona can defend itself under the constitution’s State Self Defense Clause.  

The opinion stated, “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.”

“It’s up to the executives of the state, that is the governors, to make that determination, and then do everything they can to secure the border and basically do the job that the federal government won’t,” Brnovich, R, told Straight Arrow News.

Immigration attorney Allen Orr argued states don’t have the right.

“I don’t know of any invasion where people come in, and they turn themselves over to the people that they’re asking for asylum for,” Orr said. 

But Brnovich said his opinion is not about the people who are coming here seeking a better life.

“The reality is, is that, you have a record amount of fentanyl coming into this country. Last year, more than 100,000 Americans died of fentanyl and drug overdoses,” Brnovich said. “You have just this fiscal year 50, more than 50 people apprehended on the terror watch list. These are just the people we know about.”

In Texas, Republican Gov. Greg Abbott signed an executive order giving the National Guard and Department of Public Safety the authority to apprehend immigrants who cross illegally and return them to a port of entry. Abbott’s order states that the governor has the authority under Texas Government Code because the crossings posed an “ongoing and imminent threat of disaster”.

But Orr argued a state can’t legally return the immigrants to Mexico.

“They don’t have the authorization to do that or any other country for that matter, because states aren’t able to enter into treaties,” Orr said. “Control of immigration is housed within Congress because they make the rules and regulations. And then the executive branch sort of carries out those rules and regulations, and their discretion with regards to how they enforce those rules.”

Texas and Arizona agree it’s a federal issue. Gov. Abbott’s executive order states that “securing the international border is the federal government’s responsibility.”

“And states like Arizona and Texas shouldn’t be spending all this money to try to secure our border,” Brnovich said. 

But they said the federal government is failing and so they have to pick up the slack.