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Governor Abbott delivered new orders to state police and Texas National Guard soldiers. He told them to take the illegal migrants they apprehend to ports of entry, instead of into state custody. The new order is in response to the growing Biden border crisis. Law enforcement officers are instructed to take the migrants back to a port of entry but let them remain on the U.S. side of the border. No one is to dump them back into Mexico.

It sounds a lot like catch and release, doesn’t it? That is what some critics of Abbott’s order say. Abbott said that Biden has created an invasion of Texas by relaxing the Trump administration’s policies which have produced floods of illegal migrants crossing the southern border. Abbott doesn’t actually call it an invasion, though, and that is causing frustration among his more hardline critics. He also didn’t order the migrants to be sent back to the Mexican side of the border.

There is no pleasing everyone with this order. Conservatives are upset that Abbott isn’t being hard enough and liberals are angry that this is likely an illegal order. Adding to the confusion, DPS is unable to provide any details about the effects of the order.

“No significant changes to current policy. This is still catch and release,” tweeted a group associated with former Homeland Security official Ken Cuccinelli, who has said states actually should push migrants back into Mexico.

Jeremy McKinney, president of the American Immigration Lawyers Association, said Abbott’s order is “morally reprehensible and unquestionably illegal” and will harm asylum seekers and border communities.

“We are unable to discuss operational specifics,” said Department of Public Safety spokeswoman Ericka Miller, when asked how officers would carry out the governor’s order – and if they would use force if migrants balked.

What could go wrong?

John Yoo, who served in the Justice Department under former President George W. Bush thinks Abbott is deliberately trying to provoke a lawsuit that will end up at the Supreme to test the Arizona case. Say what you will about Abbott and some of his more stringent policies, he makes decisions in an intentional way and seeks to receive final decisions in the highest court. Remember, he was the Texas Attorney General before he ran for governor. John Yoo may be right.

Yoo was referring to a 2012 Supreme Court decision in which the court significantly dialed back Arizona’s attempt to have state and local police enforce federal immigration laws. The high court has a more conservative cast, Yoo noted. Abbott has spoken of how he framed Operation Lone Star, his border security initiative, to stay within the limits justices set out a decade ago.

Under the U.S. Constitution and federal law, the federal government has the sole duty to enforce immigration and border policy. In specific instances, known as “Section 287(g) agreements,” however, it has deputized state and local law enforcement to help enforce federal immigration law.

Abbott repeated something that he often says when he is discussing the Biden border crisis – Texas has to step up because the Biden administration will not.

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“While President Biden refuses to do his job and enforce the immigration laws enacted by Congress, the state of Texas is once again stepping up and taking unprecedented action to protect Americans and secure our southern border,” Abbott said in a written statement.

“The cartels have become emboldened and enriched by President Biden’s open border policies, smuggling in record numbers of people, weapons, and deadly drugs like fentanyl.”

Biden’s order has already been tested, intentionally or not. Last week I wrote about Kinney County Sheriff Brad Coe. He pursued illegal migrants in a car chase and then apprehending all but the driver, who sought medical treatment, he drove the passengers back to the port of entry in Eagle Pass. He dropped them off there, he didn’t drive them across the International Bridge to the Mexican side of the border. Border Patrol agents couldn’t take the migrants into custody before they received medical help, which they refused, so Sheriff Coe had limited options. He drove them himself in his work SUV.

Abbott has hesitated to employ the term ‘invasion’ because it might put state law enforcement officers at risk of prosecution by the DOJ if they took over immigration enforcement. Immigration is a federal issue. However, for months, people like Ken Cuccinelli have been pressuring Abbott to declare an invasion. Cuccinelli is now with the Trump-affiliated group the Center for Renewing America. He joined Kinney County officials earlier this week in Brackettville, Texas as they made their own invasion declaration. It has no legal grounding but they made their point. Lt. Governor Dan Patrick agreed with the invasion declaration. “If we’re being invaded under the Constitution, I think that gives us the power to put hands on people and send them back,” Patrick said on Fox News. “Put hands on people and send them back.”

Cuccinelli isn’t the governor, Abbott is. No one can say that Abbott’s a squish on border security, though plenty will after Cuccinelli’s tweet. That’s how politics work. Republicans love to cry RINO whenever they aren’t being obeyed. It’s a circular firing squad.

On Thursday, Brent Smith, a Kinney County attorney, said Abbott’s actions fell short.

“Without declaring an invasion and invoking the self defense clause under Article 1, the lawlessness and violence occurring on our border with Mexico will continue to be allowed by DHS and their unconstitutional immigration policies,” Smith said in a statement.

We’ll see if John Yoo is right and Abbott’s latest order, as limited as his conservative critics say it is, goes all the way to the Supreme Court.

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