The Daily Signal - Texas vs. Biden: Lone Star State’s Battle to Secure the Border

Episode Date: February 20, 2024

When it became increasingly clear that the federal government was not going to stop the flow of illegal aliens across the border, Texas Gov. Greg Abbott began taking strategic action.  “You look at the results, and they speak for themselves,” Brent Smith says of what Abbott has done to slow the flood of illegal crossings.   Smith serves as the county attorney for Kinney County, Texas, which borders Mexico and is about 130 miles west of San Antonio. Because of the enormous influx of illegal aliens crossing the border, Smith says, “Everything has changed” in his community.  “People now, when you hear a helicopter flying in the air, kids know to run home,” Smith said. “And if you hear sirens, 99% of the time, it has to do with illegal immigration.” Even schools have "military barriers around them" to prevent smugglers from driving through the campus, he added.  The county attorney also said his workload has multiplied many times over as frequent arrests of illegal aliens are made in the county.  According to Smith, “preventing the entry, repelling them at the river” is the way to address the crisis. That's what Abbott has done in Eagle Pass, Texas, at Shelby Park.  Under Abbott’s leadership, the Texas National Guard is preventing the Border Patrol from processing illegal aliens in Shelby Park, which is on the Rio Grande and which served as a popular crossing point until Texas assumed control of it.   The Texas National Guard has laid concertina wire fencing along the riverbank and built a 4,500-foot border wall using shipping containers topped with sharp razor wire to repel illegal crossings.  Because crossings into Shelby Park have fallen to almost none, Smith says, Abbott will likely “expand the tactic that he's using in Shelby Park to other places.”  Meanwhile, the Biden administration has been critical of Abbott’s recent tactics and has previously taken legal action against the governor's efforts to secure the border.  Smith joins “The Daily Signal Podcast” to explain the ongoing legal tensions between Texas and the federal government, and what could be next as the border crisis continues to unfold.  Enjoy the show! Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is the Daily Signal podcast for Tuesday, February 20th. I'm Virginia Allen. Hope you all had a great long weekend if you had yesterday off in celebration of President's Day. Today, we are discussing the situation on the southern border, and specifically down in Texas, the scenario that is playing out between Texas Governor Greg Abbott and the Biden administration. We're breaking it down with Kinney County, Texas attorney Brent Smith. Brent has been on the forefront of looking at a lot of the legal terms. challenges that are going on right now between Texas and the Biden administration. We discuss how this tension is playing out between Texas and the federal government and how Texas's efforts to

secure the southern border by putting up wire, shipping containers, and using the National Guard in Shelby Park have served to secure the border. Stay tuned for my conversation with attorney Brent Smith after this. We're all guilty of it, spending too much time on the internet watching silly videos. But it's the 21st century, and maybe it's time for a change. At the Heritage Foundation YouTube channel, you'll find videos that both entertain and educate, including virtual events featuring the biggest names in American politics, original explainers and documentaries, and heritage experts diving deep on topics like election integrity,

China, and other threats to our democracy. All brought to you by the nation's most broadly supported Public Policy Research Institute. Start watching now at heritage.org slash YouTube, and don't forget to subscribe and share. It's my pleasure to welcome to the show, Kenny County Attorney, Kenny County, Texas Attorney, Brent Smith. Brent, thanks very much for being with us today.

Really appreciate it. Thank you. Thank you for having me. Well, I was down in Kinney County, and I think it was the fall of 2022, and we had a chance to meet and talk and talk a little bit about Operation Lone Star and what's happening in Kinney County. A portion of Kinney County does border Mexico.

If you would, just explain to us a little bit about how your county has been affected by the crisis on America's southern border. Right. We have 17 miles on the Mexico border. We don't have a port of entry. We do have a port of entry to our north in Valverde County, which is at Del Rio, and to our south in Maverick County, which is Eagle Pass. So all the traffic we get are the gotaways, the people who, who are trying to evade law enforcement.

We haven't had any asylum seekers or give-ups, as they call them. You know, our caseload skyrocketed. You know, when you came the first time, we were going from six cases a month to 400 cases a month. And right now we're approaching, I think, 6,000 cases just in my office alone for criminal trespass and evading on foot. That's not accountable felony smuggling cases. So through Operation Lone Star, though,

we've been able to expand our personnel, our clerks offices, our judges, my paralegals, to handle that kind of caseload on something you would see, you know, in the town of Galveston, Texas. So it's a small county handling a huge caseload. And that's because we're enforcing the law in Kenny County. We're not just, you know, if someone's going to break the law in Kennedy County, they're going to be prosecuted. Okay, explain a little bit more about how that works and how specifically that impacts you, your daily job because not everyone might realize that when illegals cross the border and they wind up in a county like

Kinney County, then it's actually up to you, who's the county for the attorney for the county, to take a role in processing that illegal alien and seeing that there is, that there is law in order that there is justice on that front. Right. And so what we're doing right now is enforcing state law. You know, right now on the books, we have criminal trespass, which is a Class A misdemeanor under a disaster declaration, which it's enhanced from a B to an A when a county is under a disaster declaration. So it's a class A. Evading off

foot is also a class A. So when they get arrested, you know, it's just like any other person. There's a probable cause affidavit. They get taken to the magistrate. They get processed, booked, put into jail. And from then, we go into court. Once we get a plea or they are found guilty or they are dismissed, whatever the case may be, Then they're handed over to ICE. And in many cases, they deport them, but, you know, who knows? It's like a black hole for my office because I have no idea. There's ICE detainer on them.

We hand them over to the federal government after they serve their time. And then we go from there. Now, March 5th is when the new state law takes into effect of illegal entry, which basically says if you come into Texas illegally and not through a report of entry, it's a state crime. So it's no longer just a criminal trespass charge. Because, you know, technically, you could walk down the high. highway and not criminally trespass. This new law, if there's probable cause to be found that you entered Texas illegally, you're going to be arrested. And at that point, if the defendant

wants to agree to be deported or removed voluntarily, he can do that, or he can be prosecuted and if found guilty, then ordered by a judge to be removed. And so that's going to affect March 5th, and I'm sure there's going to be litigation over it, but, you know, Texas is doing everything we can to use the laws of our state to enforce our borders. Yeah. Has daily life changed for folks in Kinney County? You would say over the past three, four years, given this massive influx of illegal aliens crossing the border.

Everything has changed. Everything. People, you know, now when you hear a helicopter flying in the air, kids know to run home if they hear a helicopter. And, you know, if you hear sirens, 99% of the time, It has to do with legal immigration. You know, of the cases we have, we probably have about 5,000, oh, I don't know, and 20 of those cases, or county cases, or 30 of them maybe.

So you're looking at 30 cases out of 5,000, meaning your normal county cases that we normally have just for local residents. And you add 5,000 to that is what we have because of the border crisis. So it's affected everything from hospitals to what you do at, you know, you walk down the street in Brackaville, which is in Kenney County. And you don't see kids playing in parks by themselves. You don't see kids walking on the sidewalks.

Our schools have military barriers around them, big boulders to keep smugglers from driving through campus trying to evade police. And in fact, there's been several bailouts where the illegal aliens being smuggled tried to enter the school and try to get inside the school and not get caught. I mean, it's every aspect of our life has changed.

There's not, I don't think there's, there's anything that hasn't changed. Yeah. Texas Governor Greg Abbott has used Operation Loan Star as the means to really try and secure the border and stop this constant flow of illegal aliens into the state of Texas. What is the latest on Operation Loan Star in regards to the action that Governor Abbott is taking? I believe Governor Abbott, I think Shelby Park was a big deal. That was, you know, both legally and for state's rights,

step in the right direction, trying to take state sovereignty and protect it, even though the federal government doesn't want to allow us to do that. Right now, I believe Governor Abbott is getting more states to send National Guard to expand the operations in Shelby Park to expand those two other places on the banks of the Rio Grande. Because when it all comes down to it, preventing the entry, propelling them at the river, is the way to do it. Because once they enter, then you're looking at all kinds of costs involved on prosecutions or health care or anything else. The The simplest form is preventing entry and creating the deterrence. So they go to California or Arizona.

They don't want to enter Texas. And so that's what Governor Abbott is trying to do. And I believe he's doing a pretty good job by getting the governors of other states to step in and help Texas. Yeah. I was just in Shelby Park, as you know, Brent, a couple weeks ago. And it is fascinating to see what's happened there that Texas National Guard has taken control over the park. They've assumed authority that used to be, as you know, a major process. point for illegal aliens, and then Border Patrol would use the park as sort of this staging

area after illegals crossed the river. And now that Texas National Guard has put up fencing, they've put up shipping containers, they've created this makeshift wall, they've posted guards, you know, those crossings have dropped to almost zero. Do you think that Texas Governor Greg Abbott intends to use what he did in Shelby Park almost as a model? that we would see similar action taken at major crossing points in El Paso or McAllen or Del Rio, where he would bring in Texas National Guard and essentially stop all crossings. I mean, why wouldn't it? You know, you look at the results and they speak for themselves.

There are some complications on certain parts of the border. Certain limited parts are federally owned. I believe some in the Del Rio area. You'd have to look, but most of Texas, almost all of Texas, is privately, owned either by citizens or a city. There are a few places that are federally owned. So places like that, he'd have a hard time doing it there. But I believe he's going to expand, you know, the tactic that he's using in Shelby Park to other places because you look at the results, they're hard to argue with. You know, crossings are almost zero. But the cartels are now looking

at what happened in Shelby Park. They're reevaluating different routes. They're going to make another push soon. And so Texas is basically primed to respond to where, that is. And so I think, you know, we'll see what happens. But, you know, the more important thing is legally, the issues that have been raised by the Shelby Park issue are now in the courts. I firmly believe the next 12 months in court is going to determine the next 100 years for this country when it comes to state sovereignty. What can states do? When can they do it? And most people have forgotten that states are sovereign, not just Texas, but any state. They have, you know, there's several authorities that they have that are delegated specifically to the states and not to the federal government.

The states created the federal government. So they reserved all things not specifically delegated to the federal government. And I believe many in the media just, you know, are blown back by this idea that states are sovereign. So, you know, we'll see what happens. But I think a lot of important issues were raised by Shelby Park and they're going to be litigated. The Biden administration would no doubt disagree with some of what you just said because they're arguing that they should have authority to resume control of that park. And they say, Governor Abbott, you know, you don't have the authority to do what you're doing in Shelby Park where Texas National Guard has come in and taking control. Explain to some more of that conflict. And what authority is Governor Abbott

pointing to to say, no, no, no, Texas does have authority to essentially close off. sections of its border and say illegal aliens, you cannot cross here. There's some confusion at oral or maybe, you know, willful ignorance here, but what we're dealing with isn't per se an immigration issue. This is a security issue. If it was purely immigration, it'd be a harder argument to make, even though the Constitution specifically delegates Congress, the authority to create naturalization laws, meaning, you know, Georgia and Virginia were creating their own naturalization laws for people to become a citizen. And they had different requirements in different states.

So the Constitution was in place to basically create a uniform naturalization law to where Congress created one set of rules for everyone to be admitted under. That's a legislative power of the pen. Border enforcement isn't specifically addressed in the Constitution. In fact, if you read Anton Scalia's dissent, he goes through the history of back in the 1800s, this same debate was here. It was that the federal government didn't have authority to enforce immigration. It was the state's job.

And now the arguments have flipped on their head. Now it's people saying it's a federal government's role, not the states. So throughout history, we've seen polar opposites of who's arguing what. But what people need to realize is this isn't even an immigration issue. This is now a constitutional issue for states protecting their citizens. And it really comes down to the right of self-preservation, which is an in in inable right each sovereign state has to protect the welfare and security of its citizens and its borders.

We've gone past that immigration issue, and now we're in constitutional issues where the governor has invoked Article 1 under the invasion clause that he reserves the power to protect the state. And so it's using a constitutional authority, and that authority trumps federal code, federal immigration code, or anything else.

So many people are stuck on this idea, well, it's an immigration issue. No, it's a constitutional issue at this point. And so I think that's where we're at. You said you believe that the next 12 months will determine the next 100 years as it relates to states' rights specifically. On that front, what legal cases are you watching closely and where do those cases stand? Well, right now there's two major cases. There's the water buoy case where Texas has put buoys up in the water and the federal government has challenged the youth of those. under International Water Boundaries Act, and the state's arguing constitutional authority for doing so,

and it's in the Fifth Circuit right now. The other case is the wire-cutting case, where DHS has cut wire, Texas sued them on a torts claim, but also arguing some constitutional provisions. That is also in the Fifth Circuit. The temporary restraining order that was lifted by the Supreme Court is basically saying, until the case is resolved in the Fifth Circuit,

DHS does have permission if necessary to cut the wire. And it said nothing about Governor Abbott can't put wire up, that Governor Abbott can't repair wire that's cut, or that Governor Abbott can't let them, or it has to let them to the waterfront. So it's a specific order that allows DHS to cut wire. So everything that Abbott's doing is lawful. I think some people are trying to say he's defying the Supreme Court,

which legally is not. If anything, he's upholding his duty, the governor that he swore an oath to. And what's the position of the people that you talk with, locals in Keeney County? What do they make of this almost really standoff between your governor and President Biden? You know, there's the people on the ground that the agents, Border Patrol, DPS, National Guard, we all live together. We live here. There's no conflict with the agents on the ground.

It's the higher-ups that are trying to do a power grab and, you know, trying to flex their political muscle. But as far as people on the ground here, they do believe the federal government has abandoned Texas, has abandoned the states, really, not just Texas, because you look all over the country and you see the ramifications of this crisis. No one's here is expecting Biden to change what he's doing. Why would he? I mean, now of all times, we're not looking for the federal government for helping anymore. Like, we've given up on them, basically. And so now we're looking to the states to help us.

And so far, we've started kind of ramping up operations and other states are involved. But this is going to be a state's issue. I don't think, you know, Biden ran on open borders. He told us this crisis was coming. And, you know, he followed up on that promise. That's for sure. And so now the state tried having to step up and do this. But, you know, Kenny County was one that we declared an invasion in July of 22.

And other counties started doing so as well using the same template I drafted. And now we're up to 52 counties who have declared an invasion on the Texas border. And then that's one of the reasons. Abbott has now declared an invasion as governor. And, you know, it starts, this issue started at the ground level from people living on the border themselves. And there's Democrats, Republicans. This is not a political issue for Texans. Unfortunately, in D.C. it is.

Meaning people say it's not a political issue. Well, it's hard to argue that it's not when you look at the votes in Washington, D.C., split down the aisle. But in Texas, it's not a political issue. You have Democrats and Republicans both wanting to secure the border. realizing the danger we're in, not only Texas, the entire country. We've never been in this situation before where we have so many different terrorists coming across the border unchecked, unidentified. We have enough people dying every day that it's akin to a 747 jet crashing every day. I mean, could you imagine if the airline crashed every single day? There'd be congressional

hearings, people brought before courts, investigated. We have nothing. With all the fentanyl deaths that we haven't happened every day, it's the same thing as a jet crashing. But you don't hear Pete from Washington about it. It's amazing. We've hit a really interesting point in this crisis where right now you do have folks on the left and the right saying, yes, this is a crisis. The difference is solutions. You have very, very different takes on what should happen next. Everyone's like, okay, yes, there's a problem, but what do we do now?

what have you seen are some of the key differences and how folks on the political left versus right say this issue needs to be addressed? You know, this is a very simple solution. As a prosecutor, I can tell you this, and anyone knows this. If you don't enforce a law, people don't tend to follow it. It's simple as that. If we don't enforce immigration laws, people aren't going to follow them. You have to have a deterrence.

Any crime you have, you have a deterrence that has to be at a level where they don't want to commit the crime. They'd rather not commit the crime because of the punishment involved. With right now, without any enforcement of our immigration laws, there's no punishment. In fact, there's rewards. And that's where you look at the two solutions that are projected by Congress, that one side wants deterrence and enforcement of our existing laws, and the other side wants to create these type of magnets with, you know, worker, work visas, free handouts, free lawyers, that's going to create the crisis. It's going to make it even

worse. It's not creating deterrence. It's not going to stop the legal flow. It's going to make everything worse. And anyone on the border can tell you that. It's all about messaging and deterrence. And this so-called border security bill that was proposed by the Senate is a laughing stock of everyone on the border. You know, we look at this and like, that's what y'all came up with, really. I could have come up with something on the weekend better than that, and they took months to do it. You know, it's ridiculous. And so that's where I'm talking about with the enforcement mechanism. You have two different solutions.

One would make the crisis worse, and the other one would actually fix the problem like HR2. So that's where we're at. You know, we have two different solutions. One works, one doesn't. And as a border resident, I can tell you, HR2 will work. The Senate border security won't. Of course, the House passed HR2, last. year the Senate has yet to take up that bill. But Brent Smith, Kenny County, Texas attorney,

thank you so much your time today. We really appreciate it. Thank you. And with that, that's going to do it for today's episode. Thanks for being with us here on the Daily Signal podcast. Be sure to check out our evening show this afternoon, where we bring you the top news of the day around 5 p.m. Also take a minute to subscribe to the Daily Sickle podcast wherever you'd like to listen and be sure to leave us a five-star rating in review. Thanks again for being with us today. We'll see you right back here at 5 p.m. for our top news edition. The Daily Signal podcast is brought to you by more than half a million members of the Heritage Foundation. Executive producers are Rob Lewy and Kate Trinko. Producers are Virginia

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