Top former Trump administration officials are warring with the governors of Arizona and Texas over their refusal to declare an “invasion” at the Mexico border in order to justify more aggressive measures to curb illegal immigration.

Former Department of Homeland Security second-in-command Ken Cuccinelli accused Gov. Greg Abbott (R-TX) on Wednesday of doing nothing to resolve the border crisis, more than a year after it began, and instead accused him of wasting billions of dollars on Operation Lone Star, a joint border mission between state troopers and national guard members, which Cuccinelli derided as a “photo op."

Cuccinelli leveled a similar charge against Gov. Doug Ducey of Arizona.


“You’ve got two governors, Gov. Ducey in Arizona and Gov. Abbott, talking very tough, using cool-sounding programs like Operation Lone Star in Texas and Border Strike Force in Arizona,” Cuccinelli, now a senior fellow at the conservative nonprofit organization Center for Renewing America, said during a call with reporters.

“Even this month, with the highest [migrant encounter] numbers ever, only a month after Gov. Abbott announced unprecedented efforts to protect Texas’s borders, they have done nothing to lower the numbers crossing,” said Cuccinelli, whose technical title in the Trump administration was the senior official performing the duties of DHS deputy secretary.

Cuccinelli and former White House Office of Management and Budget Director Russ Vought last October began calling for border governors to cite the state self-defense clause outlined in Article I, Section 10 of the Constitution, as well as the invasion clause in Article IV, Section 4. If the federal government fails to protect a state, the governor may take action to protect itself — in this case, arresting and removing any person who illegally crosses the border.

“We are talking about a war power. That sounds shocking to people, but we’re not talking about tanks and planes. We’re literally talking about state officials doing the same exact thing that federal officials do with Title 42,” Cuccinelli told 710 KURV host Sergio Sanchez on Monday, referring to the pandemic public health policy that allows U.S. border officials to turn away illegal migrants immediately. “You just grab people coming across illegally, you fingerprint them, you take their picture, and put them straight back across the border.”

Title 42 is slated to end on Monday. The DHS anticipates the number of noncitizens who will attempt to enter the U.S. unlawfully will dramatically increase when it ends. The Biden administration is preparing as many as 18,000 people to be apprehended at the border in a single day for up to six weeks after Monday.

Cuccinelli calculated that, of the 8,000 noncitizens encountered at the southern border daily in April, approximately 3,500 are released into the interior of the country. At the current rate, if Title 42 ends next week, potentially twice as many people would be released into the country, he said. The “worst-case scenario” would mean “five times as many” migrants being released into the U.S. as the current rate.

Arizona and Texas have been the most heavily affected states in terms of illegal migrant apprehensions. Since the government’s fiscal 2023 year began last October, 1.26 million of the 1.4 million noncitizens encountered attempting to enter the country unlawfully nationwide have been intercepted by agents based in Arizona and Texas.

Despite this, Ducey and Abbott have bucked Cuccinelli and Vought’s pleas.

Arizona Attorney General Mark Brnovich broke with Ducey in February and wrote a legal opinion defending the legality of an invasion declaration.

In the 1990s, Arizona and other states experiencing massive numbers of illegal border crossings, mostly by Mexican men, sued the federal government, arguing that the situation constituted an invasion. The court said it did not meet the standard because an invasion must be a foreign policy or defense matter.

“However, these decisions did not address the current situation of escalating violence and smuggling by transnational cartels and gangs,” Brnovich wrote.

Cuccinelli maintained that if either state did take action, it would require state law enforcement to arrest illegal migrants and return them to Mexico.

Abbott has said that he is “not afraid of a court fight” with the Biden administration. In fact, Texas has sued Biden more than 25 times in 16 months. Instead, he said, he opposes declaring an invasion because it would put law enforcement in a tough situation.

“If I make that declaration and tell law enforcement to do it, and law enforcement does do this, they are subject to potential criminal penalties imposed by Merrick Garland, the United States attorney general, and the Biden administration, that would be more than happy to arrest and to prosecute a Texas law enforcement official,” Abbott told 710 KURV on May 11.

Abbott added that sending noncitizens back into Mexico would likely create a “revolving door” similar to that of Title 42, meaning that those expelled simply retry crossing a mile up the river as many times as it takes.

“He’s run Operation Lone Star and kept your National Guard up and running for a show. He knows it doesn’t do anything,” said Cuccinelli, adding that the state could win a battle in federal court. “If you’re the federal government and you sue Texas over it ... they have to prove there is not an invasion, and they have the burden of proof because they're the plaintiff in the case. Good luck proving that today with the state of the border. I don’t think it could be done."


Abbott spokeswoman Renae Eze said in a statement to the Washington Examiner on Wednesday evening that declaring an invasion was not completely ruled out.

“President Biden’s reckless open border policies have created an ongoing crisis along our southern border, with illegal immigrants from over 155 countries surging into our state and our country. In addition to what Texas is already doing to secure the border, all options remain on the table to protect Texans," Eze said.

Ducey's office did not respond to a request for comment.