Abbott’s Border Promise

Earlier this month, Governor Greg Abbott revealed a new plan to revitalize the campaign promise of former President Donald Trump to build a wall at the Texas-Mexico border. The U.S. Border Patrol and Office of Field Operations has seen a dramatic increase in border encounters with the months of March, April, and May 2021 bringing more encounters than their 2019 and 2020 respective counterparts combined. Encounters with single adults now account for approximately 71% of all southwest land border encounters, but U.S. Customs and Border Control also tracks information regarding unaccompanied minors, individuals apprehended with a family member, and accompanied minors.

Abbott’s promise of “the most robust and comprehensive border plan the nation has ever seen” relies on a few key contributing factors and faces significant criticism.

1. Partial funding through donations.

With a required $250 million down payment allocated for the wall, Abbott will be seeking donations from across the county to pay for it. While the total cost of the wall remains unknown, Abbott said that the State must first hire a program manager to properly account for the total cost of the wall, which – according to Abbott – will cost far more than $250 million.

On June 1, 2021, Abbott issued a disaster declaration in response to the border crisis in Texas, authorizing the use of all necessary and available state and local resources to protect landowners from trespassers crossing the Texas-Mexico border and the damage these individuals allegedly cause to private property. Using the June 1, 2021 disaster declaration, Abbott has directed Bryan Collier, Executive Director of the Texas Department of Criminal Justice, to transfer $250 million in General Revenue to the Disaster Fund for a “down payment to begin design and construction of physical barriers on voluntary donated private and public lands that border [Texas] and Mexico.”

Democratic state Representative Mary Gonzalez of El Paso, who sits on the budget writing appropriations committee, said that the legislature did not allocate money in its $250 billion budget for a border wall but that lawmakers did allocate $1 billion for border security, with most of these funds going to the Texas Department of Public Safety.

2. Partisan action to blame on lack of federal leadership.

On his first day in office, President Joe Biden issued a proclamation stopping border wall construction. Abbott has stated that the border crisis we are facing right now is because of the open border policies put in place by the Biden administration. Lieutenant Governor Dan Patrick has made similar comments, stating, “Trump was getting the border under control. Had we had four more years with him, we would have had the border under total control.” Florida Republican Governor Ron DeSantis recently announced that he will be sending state and local law enforcement to Texas as reinforcements to deal with Abbott’s disaster declaration.

3. Arrests made easier with expansion of state power.

Under Abbott’s plan, state officials will be able to jail individuals illegally crossing the Texas-Mexico border due to the expansion of state powers triggering a violation of state law rather than a federal violation. Abbott also announced that Texas would also increase space in local jails. Under the June 1, 2021 disaster declaration, Abbott:

• • • Directed the Texas Department of Public Safety to enforce all federal and state criminal laws, including criminal trespassing, smuggling, and human trafficking.
    • Ordered all steps necessary to discontinue state licensure of any childcare facility under a contract with the federal government that shelters or detains unlawful immigrants.
    • Commanded the Texas Commission on Jail Standards and the Texas Commission on Law Enforcement to work with counties to provide appropriate guidance and request any necessary waivers in order to provide flexibility for counties to establish alternative detention facilities or add or expand capacity of detention facilities. These agencies were also directed to streamline procedures for licensing, transfers, and staffing issues that may arise because of increased capacity.

It remains unclear under what authority Abbott has to fulfill his promise, with non-partisan migration experts claiming that immigration authority largely falls under the purview of the federal government, with historical legislation supporting such a framework. Abbott’s expansion of state power will be quickly disputed, with legal challenges already being threatened and declared by the League of United Latin American Citizens and the American Civil Liberties Union of Texas.

4. Reliance on volunteer of private land.

   In a June 16, 2021 letter from Abbott to President Joe Biden, Abbott demanded the immediate return to Texans any land taken by the federal government but not being used to build a border wall. Texas continues to approach private landowners, requesting these landowners to host portions of the border wall. Private landowners who agree to host fencing from the state will create “no trespass zones” which allow for the exercise of greater state power to arrest those attempting to cross the Texas-Mexico border.

5. Allegations of a humanitarian border crisis.

   Abbott claims that Texans living along the Texas-Mexico border, not those fleeing into the United States, are facing a humanitarian crisis with guns and gangs riddling communities with crime.

For more information regarding Abbott’s border plan and the impact it has on border communities, please visit The Texas Tribune.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our commercial and business litigation practice can be found here.