Gianforte affirms Texas’ border actions against feds

Fresh off a trip to Texas, Gov. Greg Gianforte said Tuesday that Montana would assume responsibility for its shared border with Canada if federal officials failed to secure it. 

“If the federal government continues to fail in their responsibility to secure our borders, it is absolutely the right of the states to step up to do it," Gianforte told the Daily Inter Lake. 

Gianforte visited the southern border at Eagle Pass, Texas on Feb. 4 alongside 12 other Republican governors in a show of support for Gov. Greg Abbott. The three-term Texas governor is in the midst of a showdown — and brewing constitutional crisis — with the Biden administration over immigration policy. 

Abbott has effectively blocked U.S. Border Patrol from an area of the border in Eagle Pass since mid-January. Citing Article 1, Section 10, Clause 3 of the Constitution, Abbott declared that the illegal crossings constituted an invasion and has argued that the state has the right to defend itself. 

Arrests for illegal border crossings from Mexico reached an all-time record in December, according to the Associated Press.

Abbott’s defense thus far includes miles of concertina wire strung by state officials and the seizure of Eagle Pass’ Shelby Park, a spot that U.S. Border Patrol previously used to process immigrants, according to NBC News. The U.S. Supreme Court has since ruled that federal agents can remove the wire while a related legal dispute works its way through the courts.

Montana deployed National Guard members to the southern border last year to assist Texas’ efforts. Gianforte said he is open to sending more guard members in the future at Abbott’s request.

ABBOTT’S CONSTITUTIONAL argument for taking direct control of stretches of the U.S. border with Mexico has drawn criticism. The section of the Constitution cited by Abbott restricts states — unless Congress consents — from engaging in foreign policy, maintaining a standing military or “engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.”

Among the critics of Abbott’s interpretation is scholar Frank Bowman of the University of Missouri, who described the use of the term invasion for migrants as “constitutional nonsense” while writing for the online forum Just Defense. 

“At no point in the Constitutional Convention or any of the state ratification debates does anyone, except when speaking metaphorically, employ ‘invasion’ to describe a non-violent, non-military event,” Bowman wrote. “More to the present point, absolutely no one at the Constitutional Convention or the state ratification debates used the word to connote the peaceful movement of immigrants (lawful or otherwise) from one country to another.”

But Joshua Treviño, in a November 2022 analysis for the conservative Texas Public Policy Foundation, argued that the role of the Mexican cartels in smuggling humans and drugs across the border might meet the framers’ definition of an invasion. James Madison referenced incursions by pirates in “Federalist No. 41,” for example, Treviño noted. 

“That an incursion by pirates qualified as an invasion means that an invasion need not aim at the conquest of the ingressed jurisdiction or at inflicting defeat on its armed forces,” Treviño wrote. “Nor need it involve the large masses of troops used in wars between sovereigns, although the ingress of just a handful of pirates for purposes of theft and thuggery would likely not have been different enough from the garden-variety crime that is the object of the police power to qualify as an invasion.”

Treviño and the Texas Public Policy Foundation endorsed Abbott’s moves at the border in January.

“Washington, D.C.’s decision to collude with a foreign power in the cartel-allied Mexican regime, at the expense of Americans’ safety and security, generated a security crisis at the border — and now it has produced a Constitutional crisis in America,” Treviño said in a statement linked to the foundation’s endorsement.

GIANFORTE ECHOED Treviño’s analysis after returning from Texas this week. 

“As I understand it, the [invasion] clause was originally written referring to criminals, pirates that were invading Virginia,” Gianforte said. 

Not every illegal immigrant is an enemy or a criminal, Gianforte said, although illegal immigration includes traffickers and criminals. But the sheer amount of people entering the country illegally, Gianforte argued, deserves the title of an invasion.

“Since Biden, there have been about 10 million people who have crossed the border,” he said. “If that’s not an invasion, I don’t know what is.”

Other Republicans, including former South Carolina governor and presidential candidate Nikki Haley and Florida Gov. Ron DeSantis have cited similar statistics, though PolitiFact found that number refers to encounters between migrants and federal immigration officials. U.S. Customs and Border Protection has released roughly 2.3 million migrants into the U.S. from the southern border since 2021, according to The Washington Post. 

Gianforte said that while the nation needs to work on encouraging legal immigration and expanding options available to migrants, preventing illegal border crossings is the top priority. Until that happens, Gianforte said, anything done on immigration reform “isn’t going to have the effect that we want.”

“Gov. Abbott took steps to secure the border in Texas and illegal crossings went from 3,000 a day to three a day,” Gianforte said.

While the Associated Press reported Feb. 4 a drop in crossings near Eagle Pass, they still number a few hundred each day, according to the press agency. 

Abbott also has the support of Montana Republican U.S. Rep. Ryan Zinke. Like Gianforte, Zinke argued that Texas can take matters into its own hands. 

“I stand with Texas,” Zinke said on Tuesday. “... If the federal government is negligent in their duties, I think the great state of Texas has an obligation to protect their citizens.”

The situation at the southern border is a “lawless, humanitarian crisis,” according to Zinke. Its effects are consistently seen in Montana, he said, through illegal drug trafficking, crime and more.

Montana, or any state for that matter, could follow Texas’ lead, Zinke said. 

Reporter Kate Heston can be reached at kheston@dailyinterlake.com or 758-4459. News Editor Derrick Perkins can be reached at dperkins@dailyinterlake.com or 758-4430.