Abbott's invasion declaration without deportation is just catch and release on the state level: Ken Cuccinelli

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Gov. Greg Abbott invoking the U.S. and Texas constitutions' invasion clauses won't change anything if illegal immigrants aren't deported, Ken Cuccinelli, a former Trump administration official, told Fox News.

Abbott announced Tuesday that he invoked the clauses to "defend our state against an invasion" to combat the record-setting wave of illegal immigration occurring along the border. The Texas Republican sent a letter to Texas county judges indicating that he would deploy the National Guard and the Texas Department of Public Safety and build a border wall, among other actions.

"If the goal is actually to reduce the harm to Texas, then he needs to start using the invasion authority to return people to Mexico," said Ken Cuccinelli, who served as a Department of Homeland Security acting deputy secretary under former President Trump. "He hasn't done anything but talk about the invasion authority."

"This is just catch-and-release with state officials," Cuccinelli continued. "Everybody knows an invasion exists, but to actually repel it … means putting people crossing the border back into Mexico."

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The "invasion clause" Abbott referenced is Article IV, Section 4 of the U.S. Constitution, which states the U.S. "shall guarantee every state in this Union a republican form of government and shall protect each of them against invasion."

"If he acknowledges that there's an invasion occurring, the Constitution has plenty of provisions that not only the federal government has a duty, but the states, the governor of each state, has a duty to repel any invasion that occurs," Kinney County Attorney Brent Smith told Fox News.

"The next step is fulfilling the duty as the governor to repel it," Smith continued.

Cuccinelli said Abbott should boat immigrants who cross into the U.S. illegally back to Mexico. 

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"We are asking them to set up a ferry service all up and down the Rio Grande using Texas boats," the former DHS official said. "The minute people come into Texas, put them on a boat, take them back over to Mexico and drop them off."

"This is a war power, the state power to repel an invasion," Cuccinelli said. "We're just asking them to use it."

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Also on Tuesday, DHS Secretary Alejandro Mayorkas maintained the border is secure while giving testimony before the House Committee on Homeland Security, and Customs and Border Patrol announced that there were 230,000 border encounters in October — an all-time record.

Later that day, a federal judge issued an order barring federal authorities from using Title 42, a Trump-era rule that allowed the U.S. to quickly expel migrants who crossed the border.

Abbott's office did not return a request for comment.

Timothy H.J. Nerozzi contributed to this report