Leaders in Texas, Arizona, and other states have deployed law enforcement and military resources to attempt to counter unauthorized immigration at the border, efforts that are highly controversial and potentially unconstitutional. American Oversight is investigating the origins and execution of these anti-immigration actions, which funnel millions in taxpayer money toward a ballooning surveillance state near the U.S.-Mexico border.
In early 2021, the governors of Texas and Arizona claimed that a massive mobilization of law enforcement was necessary to address the “crisis” at the border. There had not been an increase in the number of migrants crossing the border, but the number of apprehensions, or temporary detainments, had risen as migrants made repeated attempts to cross the border after being turned away under Title 42, the Trump-era immigration restriction masked as a public health measure.
In March 2021, Texas Gov. Greg Abbott launched Operation Lone Star, an expensive border security operation his office said was meant to combat crimes like drug and human trafficking. The operation echoed nearly two decades of similar initiatives undertaken by Abbott and former Gov. Rick Perry. At the start of the effort, Abbott deployed 500 members of the Texas National Guard and 1,000 state troopers to the U.S.-Mexico border.
By April of the following year, the initiative had sent more than 10,000 Texas National Guard troops and state law enforcement officers to the border over the course of the operation. Reports emerged that the operation was mismanaged and siphoning money from other government agencies. Troops criticized the operation in the press, reporting problems with paychecks, equipment shortages, and having little to actually do.
At the same time, Abbott’s office exaggerated statistics about the operation’s success. An investigation by ProPublica found that despite boasting high numbers of arrests and referrals to immigration authorities, Operation Lone Star counted in their tallies arrests and drug seizures that had taken place hundreds of miles from the border and that were unrelated to the mission’s stated purpose of combating border-related crime. Additionally, most migrants arrested under the operation were accused of minor trespassing offenses.
Operation Lone Star has also been slammed by legal experts and immigrant rights advocates for its targeting of migrants based on race, immigration status, and national origin; for violating due process and the right to counsel; and for encroaching on the federal government’s constitutional authority to enforce immigration law. In January 2022, a county judge ruled that the arrest of a migrant under the operation was unconstitutional, writing that it was an “impermissible attempt to intrude on federal immigration policy” by violating the Constitution’s supremacy clause. The operation is also under investigation by the Justice Department for alleged civil rights violations, according to emails obtained by ProPublica and the Texas Tribune.
Meanwhile, in Arizona, Gov. Doug Ducey in April 2021 declared a state of emergency for six counties and sent more than 150 National Guard members to the border. Ducey had initiated similar law enforcement efforts at the border in the past: In 2015, he launched the Arizona Border Strike Force, a law enforcement operation with the stated purpose of combating crimes such as drug smuggling. Despite being a border-enforcement-specific initiative, the initiative, like Operation Lone Star, often cites data on seizures of small quantities of drugs far from the Mexico border as part of its successes.
Both governors sought support from conservative leaders in other states. About three months after the start of Operation Lone Star, Abbott’s office issued a disaster declaration for 34 Texas counties near the border and joined with Ducey’s office in invoking the Emergency Management Assistance Compact, an agreement that allows states to share resources during disasters and emergencies. Abbott and Ducey asked other states — including those far from the border — to commit resources: Arkansas and South Dakota deployed National Guard troops to Texas; Iowa, Ohio, Nebraska, and Florida sent state law enforcement officers. And in April 2022, Ducey expanded Arizona’s effort to include 25 other states — all led by Republican governors — that would share intelligence and crime information as a part of the American Governors’ Border Strike Force.
American Oversight submitted multiple open records requests to several states seeking related communications, information about costs, and any analyses regarding decisions to deploy troops and law enforcement. In light of public reporting on deployed soldiers’ dissatisfaction, we also submitted a FOIA request in February 2022 to the Texas National Guard seeking records of complaints and dissent from troops.
In September 2021, we obtained records from the Texas Department of Public Safety indicating weekly costs for Operation Lone Star of more than $2.4 million. We also obtained records from the Arkansas National Guard in October revealing that its deployment cost taxpayers an estimated $503,159 between March and October 2021. Other records we obtained show that the Ohio State Highway Patrol’s deployment to the border cost $231,734.
In its 2021 disaster declaration, Abbott’s office wrote that migrants crossing the border was a “violation of sovereignty and territorial integrity in certain Texas counties.” That rhetoric echoes a legally dubious theory that anti-immigration activists and officials have sought to use as rationale for using military force at the border: that unauthorized immigration constitutes an “invasion.” The idea relies on a questionable interpretation of the Constitution, which says that individual states may not go to war on their own “unless actually invaded.” By declaring immigrants crossing the border to be an invasion, the theory argues, states have the freedom to defend themselves by using military force, including by expelling migrants.
Ken Cuccinelli, the former senior official performing the duties of deputy secretary of homeland security, has argued that unauthorized immigration constitutes a foreign invasion since at least 2007. Along with Russ Vought, the former director of the Office of Management and Budget during the Trump administration, and Vought’s right-wing think tank, the Center for Renewing America (CFRA), the pair have attempted to persuade both the Arizona and Texas governors to embrace the theory for the past two years.
In February, American Oversight obtained an email indicating that on Nov. 11, 2021, Vought emailed Gov. Ducey’s office with the summary of a policy brief written by Cuccinelli that promotes the “invasion” theory. “Ken and I would welcome getting on the phone with your team or traveling to AZ to discuss with the governor,” Vought wrote.
In the email, Vought suggested that Ducey authorize military force at the border. States should “cite state war powers and activate and deploy all [National Guard] units to the southern border … to detain and return illegal immigrants back across the border, turn back illegal immigrants to Mexico at the border, and defend against Cartel operatives,” Vought wrote. Ducey has not publicly embraced the war powers rationale for employing military force, despite support for the idea from Arizona Attorney General Mark Brnovich.
At a July 2022 news conference that was also attended by Cuccinelli, six Texas counties declared that they were under “invasion” and called on Abbott to use state resources to deport migrants. Abbott had previously expressed concerns about the legal consequences of federal prosecution in response to such actions, but his office said that “all strategies remain on the table.”
American Oversight also obtained communications between CFRA and Arizona Rep. Jake Hoffman, and has requested several other records about the war powers proposal from the governor’s and attorney general’s offices. We have also requested any communications between CFRA and Abbott’s office.