A constitutional conflict is brewing along the southern border as governors weigh going further than the Biden administration to stop a wave of migration from Mexico.

Some have even proposed that states invoke war powers the American Constitution allows only in the case of an “invasion” or imminent danger.

This proposal is part of a broader Republican effort to limit immigration along America’s southern border as Covid-era Title 42 restrictions are set to expire next month. 

Title 42 was implemented in March 2020 by the Centers for Disease Control  under President Trump, giving border patrol officers the power to block migrants from entry and to expel undocumented immigrants within America’s borders. 

Republicans have argued that Title 42  has been “an effective deterrent” against mass migration at the southern border and have pushed to keep it in place.

Two groups of senators today put forward bills aiming to extend Title 42. One seeks to retain it until the Biden administration presents a plan to deter migrants. The other aims to have it run until February 1, 2025.  

On Monday, three red states filed a lawsuit against the Biden administration to challenge the revocation of Title 42 in Louisiana’s Western District. 

Governor Abbott of Texas made headlines yesterday with his announcement that he will bus migrants to the nation’s capital. He told a press conference that he intends “to help local officials whose communities are being overwhelmed by hoards of illegal immigrants who are being dropped off by the Biden administration” by “providing charter buses to send [them] to Washington D.C.”

A later statement by the governor’s office clarified that the busing program would be voluntary and limited to migrants already released from federal custody. “To board a bus or flight, a migrant must volunteer to be transported and show documentation from DHS,” said the statement.

Mr. Abbott also announced that Texas would expand vehicle checks at the border and increase boat patrols along the Rio Grande.

Earlier in the week, the Associated Press reported on speculation that Mr. Abbott might invoke Article I, Section 10 of the Constitution, which prohibits the use of military powers by individual states — “unless actually invaded, or in such imminent Danger as will not admit of delay.”

The Constitution does not define what constitutes an invasion or imminent danger. A former Trump official and fellow at the Center for Renewing America, Kenneth Cucinelli, has argued that large scale illegal immigration qualifies as an invasion. In that scenario, a state like Texas could assert broad power to block and expel migrants from its territory — currently the jurisdiction of the federal government.

According to the Associated Press, the former acting director for Immigration and Customs Enforcement under President Trump, Tom Homan, said he had spoken with Mr. Abbott about the idea. 

“We’ve had discussions with his attorneys in his office, ‘Is there a way to use this clause within the Constitution where it talks about invasion?’” Mr. Homan said at the Border Security Expo in San Antonio.

Supporters of this legal argument were disappointed by Mr. Abbott’s press conference. The executive director of Citizens for Renewing America, Wade Miller, called Mr. Abbott’s plan “an unserious response” in a Twitter thread, retweeted by Mr. Cucinelli. 

With the midterm elections looming, the success of these initiatives — congressional legislation, legal challenges, and constitutional interpretations — will be borne out not only in practical policy results but also in election results.