Gov. Abbott orders border authorities to send migrants back to port of entry

Texas Governor Greg Abbott has issued an executive order directing the National Guard and state troopers to detain border-crossers who avoid ports of entry and turn them over to the feds.

The governor's critics call it a political "stunt," but it's still setting up a legal showdown with the federal government.

Gov. Abbott's executive order is likely to be challenged in federal court as some Republicans are pushing him to call the surge an "invasion."

The surge of illegal crossings at the southern border is showing no sign of slowing down.

In May, according to the most recent numbers, U.S. Customs and Border Protection reported nearly 240,000 encounters, mostly in Texas, which was an all-time high.

It's also caused Gov. Abbott’s supporters to pressure him to do more.

Multiple border county leaders want the migrant surge declared an "invasion," believing that it triggers a constitutional mandate for more federal border resources.

RELATED: Some Texas leaders want border surge declared an ‘invasion’

Migrants are apprehended by US Border Patrol officers and members of the National Guard in Eagle Pass, Texas, US, on Sunday, May 22, 2022. Photographer: Eric Thayer/Bloomberg via Getty Images

Instead, Gov. Abbott issued an executive order authorizing the Texas National Guard and state troopers to "apprehend" and "return" immigrants who illegally cross back to the ports of entry. 

"What the governor is trying to do, as the governor, is trying to take them back to the port of entry, force them to make a legal entry at the port of entry," said National Border Patrol Council President Brandon Judd, who has appeared in political ads on behalf of Gov. Abbott.

Judd said, prior to this order, state law enforcement would call Border Patrol, who would then handle transporting the migrants back to the ports of entry. 

"They're not apprehending for a federal crime. They are finding them, they are apprehending them for committing a state crime, which they have the authority to do," Judd explained. "Now, if they then determine that they're in the country illegally, they take them back to the port of entry and they turn them over to federal officials."

But what's missing from Thursday's announcement is any mention of Gov. Abbott's mass arrests of border crossers for "criminal trespass."

A group of those arrested by state troopers under Operation Lone Star have sued in federal court, claiming they were held in custody even after posting bond or having their charges dismissed.

SMU law professor Eric Cedillo said Thursday’s executive order will also be challenged in federal court. 

"Under Operation Lone Star, at the very least, he can assert that they were trespassing and that's a state law violated, so they can be detained and picked up," he said. "In this context, he's saying federal law is being violated. We're going to have state police pick you up. And I think that's where he's gone too far."

Texas DPS would only say they are acting under the direction of Abbott’s order. 

This order also does not impact the bussing of migrants to D.C. So far, nearly 4,000 migrants have agreed to be dropped off there.