Texas can make a border wall happen.  Many worry that courts will block President Donald Trump from building a border wall with funds reprogrammed from other projects under a declaration of an emergency.  However, Texas is in the more conservative Fifth Circuit, not the Ninth.

As an attorney who worked for Judicial Watch and more recently for Larry Klayman at Freedom Watch, this topic has prompted legal research by the author.

The border wall should be built exclusively in Texas at first, postponing California, Arizona, and New Mexico until after the Texas border is secure.  That will keep lawsuits in the Fifth Circuit and out of the Ninth.  Texas can make this happen.

1. Texas governor Greg Abbott should formally request that the president issue a declaration of an emergency.

2. Abbott should declare a state-level emergency.

3. Abbott should ask Texas officials to compile incidents of violence, gang activity, drug-smuggling, human-smuggling, sex-trafficking, etc. to document grounds for an emergency.

4. Abbott should make demand invoking Article 4, Section 4 of the U.S. Constitution that the federal government "shall" protect Texas against "invasion" by armed gangs and criminals.

5. The Texas Legislature should pass a resolution invoking Article 4, Section 4 of the U.S. Constitution that the federal government "shall" protect Texas against "domestic violence" spread from Mexico across the border, including armed gangs and criminals, drug-smuggling, human-smuggling, sex slavery, etc.

Decision-makers need to stop viewing this topic as one single step or as mutually exclusive with other actions.  Trump should declare a national emergency while still negotiating with Congress for appropriations.  It is not "either-or."  He can reprogram funds in a later, separate step.

Section 4, Article 4 of the U.S. Constitution commands the U.S. government – unconditionally – as follows (emphasis added):

"The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive  (when the Legislature cannot be convened) against domestic Violence."

Congress passed the Secure Fence Act of 2006, mandating the following:

Not later than 18 months after the date of the enactment of this Act, the Secretary of Homeland Security shall take all actions the Secretary determines necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States, to include the following[:] ... (2) physical infrastructure enhancements to prevent unlawful entry by aliens[.]

The law further mandates that "operational control" means "the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband."

Notice "entire" border.  Notice "prevention of all unlawful entries."  The act requires "all" of the border to be 100% secure, not just 700 miles, as people say.  The secretary of DHS has to decide what type of barrier is best in various sections.  But the result must – with no discretion – prevent "all" unauthorized entry.

However, Congress never appropriated sufficient money to fund the construction authorized by the Secure Fence Act.  It was yet another lie by politicians.  Yet under an emergency, any president can repurpose funds under the authority of 33 U.S. Code §2293.

President Trump's declaration of a national emergency would be unassailable in the courts if backed by a declaration of a state-level emergency; a request from Texas for a declaration of a national emergency; the legislative command of the Secure Fence Act of 2006; and a constitutional command of Article IV, Section 4.

Attorney General Greg Abbott – now governor – sent several letters to President Barack Obama calling for action.  One letter responded to bullets fired from Ciudad Juárez, Mexico that struck City Hall in El Paso, Texas on June 30, 2010.  See Texas Capitol Report, El Paso Times, June 30, 2010. 

Dear Mr. President,

Deadly violence from drug cartels and transnational gangs in Mexico is knocking on the United States' door with ever increasing frequency.  Yesterday, gunfire from the cartels pierced that threshold and struck City Hall in El Paso.  Fortunately no one was injured or killed.  But that good fortune was not the result of effective border control – it was mere luck that the bullets struck buildings rather than bodies.

Luck and good fortune are not effective border enforcement policies.  The shocking reality of cross border gunfire proves the cold reality: American lives are at risk.  As the attached news article notes: "More than 1,300 people have been murdered in Juárez this year as a war continues relentlessly between the Juárez and Sinaloa drug cartels."  Americans must be protected as this deadly war bulges at our border.

Law enforcement officials with the Texas Department of Public Safety and your own U.S. Customs and Border Protection will reveal the hard truth.  Our state is under constant assault from illegal activity threatening a porous border.

The time for talk has passed.  The time for action is now.  The need is urgent.  Each day that passes increases the likelihood that an American life will be lost because of the federal government's failure to secure the border.

This threat demands immediate and effective action by your Administration to secure our border.  As the Attorney General of Texas, I urge you to make border security your top priority so that no more innocent lives are lost to border violence.

A 48-year-old woman shopping in El Paso was struck in the leg by bullets that flew across the border from Ciudad Juárez while pushing a stroller on a busy downtown El Paso street (Fox News, February 22, 2012).

On October 8, 2015, The Daily Mail reported: "[A] gang of drug traffickers tried to hide from US border patrol agents next to [Olissa's] home. ... Olissa, of McAllen, Texas, lives two blocks from the border, and her home is less than a mile from the most dangerous Mexican border city, which has a higher murder rate than many war zones."

Abbott should immediately order a meticulous update of survey data of the whole border, even requesting LANDSAT satellite images.  Texas could upgrade roads and muster mobile housing for workers to move along the border as work progresses, water trucks, stockpiles of food, and cargo trucks.

Texas should immediately acquire 1,000-foot easements along the border by eminent domain where needed.  Under Kelo v. City of New London, Connecticut, 545 U.S. 469 (2005), lawsuits cannot stop eminent domain, only squabble after the fact over payments.  The correct approach is for only an easement, not the "designed to fail" approach of taking entire ranches whole to artificially drive up the cost.

If Trump starts in the Fifth Circuit, opponents can delay the project.  But they cannot stop it.  The sooner we start, the sooner we will get it finished.