With former President Donald Trump out of the White House, Texas Gov. Greg Abbott (R) has taken up the mantle of border hardliner. He recently announced his intent to build a wall along his state's border with Mexico in response to what he calls an inadequate response from the Biden administration to increased migration rates in the Southwest.
"While securing the border is the federal government's responsibility, Texas will not sit idly by as this crisis grows," Abbott said on June 10.
That tension—between federal and state authority when it comes to border security and immigration enforcement practices—apparently hasn't given Abbott pause, though he recognizes that it exists. Despite his plan's dubious legal, moral, and financial grounds, he's pushing forward in the name of securing the border.
Abbott has so far provided little information about how he will finance the project, which will undoubtedly carry a hefty price tag. In Texas, one section of Trump's border wall came out to be $27 million a mile. Abbott intends to provide $250 million in state revenues as a "down payment." Those funds will come from a disaster account, a transfer made possible because he issued a disaster declaration in order to take a number of executive actions against migration. Abbott also expects that crowdfunding will help supplement state funds. So far, that effort has collected roughly $450,000.
David Donatti, an attorney with the American Civil Liberties Union of Texas who specializes in border issues, has concerns about Abbott's financial approach.
"He has declared a disaster, and by that authority, he's moving $250 million into an account that allows him to" build a border wall, says Donatti. "For a state like Texas," $250 million "is a lot of money…that could be used for hurricane recovery, toward recovery from something like the freeze that we experienced." Donatti calls it "an absurd abuse of power if nothing else," even though the result of that abuse would provide "an ineffective solution to people coming to the United States."
According to the governor, construction would also hinge on voluntary land concessions from borderlands residents. In Texas, most land along the border with Mexico is privately owned. That gives Abbott two options: either entice landowners to donate their property or seize it from the unwilling. To build his wall, Trump chose to initiate land grabs in the borderlands through eminent domain, which is a legal doctrine that allows the government to seize private property for public use. Affected landowners nominally must receive just compensation, though practically the process is rife with abuse.
Abbott has not yet sought the approval of Texas lawmakers to begin eminent domain proceedings, according to Donatti and Ilya Somin, an eminent domain expert who teaches law at George Mason University. "[Abbott] would need to get the Texas state legislature to pass a law authorizing the use of eminent domain and appropriating money for it," says Somin. "Until that happens, he couldn't even start trying to condemn the property. And so far, he hasn't even indicated that he wants to try to use eminent domain." Donatti says "that doesn't mean he won't try," in which case he's bound to enter a quagmire. "I do think the governor will confront the reality that trying to take private property from Texans is a bad political idea."
That means Abbott may be left with a piecemeal wall, built on a donated parcel here and a donated parcel there. "It may well be that this is more an exercise in public relations than an exercise in actually building an extensive wall," explains Somin. "If he makes noises about building a wall, and builds a little bit of something somewhere, then that may be good enough to get him the favorable boost of publicity in right-wing circles that he wants."
Even if he does invoke eminent domain authority, Abbott will be unable to build a wall at the border itself. A treaty governing the boundary between Texas and Mexico dictates that no fortification can disrupt the Rio Grande border or the flood plains along its shores. Donatti explains that the Trump administration had to build "a mile or more inland" to avoid this. "So effectively actually creating American territory south of the border wall." It's a "catch-22—either [Abbott] risks violating an international treaty, which is just a non-starter, or he has to build substantially inland, thereby ceding Texas to an area south of the border wall," Donatti says. Texas communities extend all the way to the border, making this an inevitable thorn in Abbott's side.
Abbott is one of many GOP governors who have recently taken decisive stances on immigration enforcement in the face of the new Democratic presidential administration. He joined Gov. Doug Ducey (R–Ariz.) in issuing a call to other governors to send law enforcement to assist with border security efforts. "The elected officials in border communities don't support [Abbott's] plans" though, says Donatti. Instead, the border has simply become a partisan talking point and the centerpiece of popular narratives. Border visit photos of the tactical-vested Gov. Brian Kemp (R–Ga.)—who, it bears mentioning, governs a state that doesn't even border a border state—certainly drive that point home.
Critics point out that a militarized attitude toward the border and immigration could have harmful consequences. Abbott has come under fire recently, along with Texas Lieutenant Governor Dan Patrick, for using charged rhetoric to describe immigrants crossing the Southwest border. The two have repeatedly characterized the influx of arrivals as an "invasion." Democratic Texas politicians quickly invoked the El Paso Walmart shooting, in which the gunman carried out an attack "in response to the Hispanic invasion of Texas." Rep. Veronica Escobar (D–Texas) castigated Abbott and Patrick, tweeting, "If people die again, blood will be on your hands."
Regardless of the wall's future, Abbott is already implementing policies beyond a physical barrier to keep migrants out. As Reason's Billy Binion reported, Abbott "has directed the Texas Department of Criminal Justice (TDJC) to clear out the Dolph Biscoe Unit, a state prison in Dilley, Texas, so that law enforcement can arrest and detain some undocumented migrants there." He's made it so that migrants are subject to "aggravated trespassing" charges, a misdemeanor, giving the state the authority to arrest migrants who are otherwise governed by federal immigration frameworks. As Donatti points out, that "quite clearly tramples on the federal government's prerogative to immigration control." Abbott has also revoked licenses for child care services found to be looking after undocumented migrant kids, which might lead to those minors being shuttled into inadequate emergency detention facilities.
Abbott's plan for the wall so far is low on detail, but the immigration frameworks he's forging leave little room for doubt. Rather than equip border communities with resources to process asylum seekers and their claims, as advocates like Donatti recommend, the governor has chosen to pursue an approach that will put him at odds with the federal government, international treaties, and his constituents. "I would hope that any solution moving forward doesn't just involve border communities as a pawn," Donatti says. Unfortunately, Abbott seems determined to relegate them to that position.