Editor’s Note: This was originally published by The Border Chronicle and written by Pablo de la Rosa
“I hereby proclaim: America’s sovereignty is under attack,” begins an executive order signed by President Donald Trump on Inauguration Day. The order responded to what Trump called “the vast amount of people” crossing the U.S.-Mexico border.
But the proclamation comes at a time when border authorities are encountering a historically low number of unauthorized entrants. Some Customs and Border Protection (CBP) sectors are reporting the lowest statistics “in recorded history.”
Catholic Charities of the Rio Grande Valley told a local news outlet that the immigration respite center they operate, one of the largest on the Texas-Mexico border, saw “maybe three families” during its busiest days, and not a soul on most others.
Nonetheless, Trump’s order declares a national emergency at the U.S.-Mexico border, laying the legal groundwork for recent developments, including the continuation of border wall construction and the use of military facilities, such as Guantánamo Bay, for migrant detention.
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The language in Trump’s order, as well as the broad legal strategy it rolls out, strikingly mirrors the 2021 disaster declaration by Texas governor Greg Abbott, which also proclaimed that migration into the state constituted “a violation of sovereignty,” and likewise concluded that a response required “the use of all available resources of government” to deal with the “invasion.”
It’s no secret that the Trump administration is rolling out Abbott’s strategy beyond Texas. The governor’s office has referred to Abbott’s controversial border security mission, Operation Lone Star (OLS), as a “blueprint for the Trump Administration’s successful border actions,” while Trump has praised Abbott as “a great leader” on immigration and has so far deployed an identical federal strategy.
OLS and Trump’s executive order expand the definition of a threat to sovereignty and widen the legal boundaries on how the federal government can respond.
Sanford Levinson, a constitutional law professor at the University of Texas, told CBS in 2023 that Abbott’s interpretation that unauthorized migrants constitute an invasion and a violation of sovereignty “is just unequivocal nonsense.” This was after the Department of Justice sued Texas for overstepping its authority on the U.S.-Mexico border. The courts sided with the federal authority against Abbott in every case so far.
For Trump’s part, his first administration was defeated in three separate lawsuits, whose plaintiffs successfully argued that the situation at the southern border did not meet the statutory definition of an emergency. The lawsuits came in response to Trump’s emergency declaration, which he used to legally justify appropriating government funds to build a border wall.
According to Chris Opila, a staff attorney with the American Immigration Council, “There are similarities between what Texas has been doing under the Biden administration and what Trump is doing now, where they’re both basically pushing the boundaries of the law and seeing what they can get away with.”
Trump and Abbott are now joining forces to test an expansion of powers for law enforcement bodies, beginning with components of the military in Texas. These moves are raising concerns about legality, oversight, and civil rights.
For example, a new agreement with Trump’s CBP will allow members of the Texas National Guard to arrest people for violating federal immigration law, a power previously reserved for federal agencies. Opila described this as part of Trump and Abbott’s pattern of activating “long-dormant provisions in immigration law to pursue them to their maximum power.”
The agreement was made under a never-before-used clause of the Immigration and Nationality Act (INA), which allows the federal government to delegate immigration enforcement powers to states anytime the Department of Homeland Security (DHS) declares “an actual or imminent mass influx of aliens arriving off the coast of the United States, or near a land border,” which “presents urgent circumstances requiring an immediate Federal response.”
Three days after the national emergency declaration, DHS declared the “mass influx” that Trump needed. With that step, agreements like the one between the CBP and the Texas National Guard were made possible between the federal government and state law enforcement agencies across the country.
So far, there have been no legal challenges to Trump’s executive order, the DHS declaration, or the agreement between CBP and the Texas National Guard.
“People are still in the process of gathering information about the terms of these different agreements,” said Opila, declining to speculate about any forthcoming litigation. “It needs to be known how this is being implemented on the ground, but there are harms besides. There’s harm to norm and there’s harm to rule of law by declaring a mass influx when there is no mass influx.”
Colleen Putzel-Kavanaugh, an analyst at the Migration Policy Institute, said the mismatch between Trump’s rhetoric and the reality on the border reflects the administration’s pursuit of its broader ambitions.
“This is certainly a tactic towards that larger goal of mass deportation,” said Putzel-Kavanaugh, “but specifically overcoming a lot of those barriers and hurdles that are in their way. The administration’s aim is to really expand the powers throughout the government, using all resources, including state resources.”
The number of Immigration and Customs Enforcement agents in the field is “incompatible” with the Trump administration’s goal of completing 1 million deportations a year, Putzel-Kavanaugh said.
While millions of deportations were reported during the Biden administration, most of them represented border expulsions carried out by the CBP under the now-rescinded Title 42 authority—a process that took place at or close to the border. These expulsions were also less labor and time intensive, and legally simpler than the interior deportations handled by ICE that Trump wants in the millions.
In 2024, the year with the highest level of deportations in a decade, ICE deported 270,000 people, a massive number but well short of Trump’s goals.
“Not only is there an effort by the current Congress to really increase funding levels for ICE, which could potentially overcome some of those capacity hurdles, but the Trump administration is also making efforts to find new ways to get around these hurdles, including this use of state and local deputization,” said Putzel-Kavanaugh.
So far, the Texas governor’s office has not disclosed how many immigration arrests have been made by Texas National Guard soldiers under their new authority.
Both Abbott and the Texas Military Department continue to publish media showcasing mass-deputization ceremonies in border towns like Eagle Pass, along with CBP and National Guard patrols.
The Texas Military Department often describes these exercises as a “show of force” that is “meant to show solidarity,” as migration levels across the Rio Grande remain near historic lows.
Opila said tasking new and possibly untrained law enforcement or military agents to enforce something as complex as U.S. immigration law could result in wrongful arrests that target people based on racial profiling.
“Because it’s so complicated,” Opila said, “the easiest thing to do for an even well-intentioned Texas National Guard is to stop people based on their race and what they look like and use that as a proxy.”
Opila added that lawful U.S. residents could end up being wrongfully arrested, since the invoked INA clause removes training requirements for officers and financially reimburses state and local jurisdictions for dealing with immigration violations.
“What happens when somebody you know enters the deportation apparatus, and what is their ability to advocate for themselves, to have access to counsel?” Opila said. “You’re transferring people to Guantánamo Bay and giving them a five-minute phone call, but not allowing the counsel to go to Guantánamo Bay. CBP and ICE already deport U.S. citizens. And if you have expanded expedited removal, there’s that higher risk.”
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