Republican governors' dangerous border standoff with Biden
Who's going to stop Greg Abbott's lawless power grab?
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Over the last several years, as the GOP has descended into vicious and petty madness, there have been plenty of things that felt utterly without precedent in American politics. But perhaps nothing is as startling as watching Texas Gov. Greg Abbott engage in secessionist rhetoric while seeing that four US Supreme Court justices seem happy to back his play.
Now, Abbott is essentially in a standoff with the federal government over who should control the federal border.
This slow-motion undoing of the balance of power between the states and the federal government began several months ago after Texas began trying to deter migrants by stringing razor wire and buoys across a section of the southern border. As far back as July 2023, reports showed that the wire was slashing young children, and USA Today reported migrants were arriving in the United States with lacerations and open wounds. In early August, two migrants were killed after getting stuck in a floating buoy wall.
Border Patrol agents responded by removing the wire, prompting Texas to sue the Department of Homeland Security in October to preserve the state’s right to use it. In its briefing to the federal district court, Texas said that the federal government’s decision to chop through the razor wire that blocked access to the United States was “an affront” to Texas. The real affront, of course, is to migrants, particularly children, who were being carved up.
George W. Bush appointee Judge Alia Moses agreed with Texas, temporarily enjoining the federal government from cutting the razor wire. To reach this conclusion, which by giving Texas authority over a federal border defies every principle of federalism, Moses twisted herself in knots. She wrote that the state owned the razor wire it was stringing, and the federal government had not shown there was a “great public calamity” that resulted from installing it.
When the federal government appealed to the Fifth Circuit, a three-judge panel led by Kyle Duncan, one of the Trumpiest judges in America, upheld Moses’s decision, writing that “the public interest supports clear protections for property rights from government intrusion and control.”
For Duncan and Abbott, an abstract concept of “property rights” outweighs the real-world deaths of migrants. Indeed, both Duncan and Abbott can be said to be responsible for the next set of migrant deaths: On January 12, the Texas National Guard blocked the Border Patrol from assisting migrants in distress, resulting in the death of a woman and two children.
While this was occurring, the federal government asked the Supreme Court to vacate the injunction and allow the Border Patrol to cut the razor wire. The Court agreed on January 22, but only by the thinnest of margins. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh would have denied the request to vacate.
Yes, four justices of the nation’s highest court appear to agree with Texas that the state, not the federal government, should control a federal border. This flies in the face of the Supreme Court’s own decision in 2012’s Arizona v. United States, when justices held that immigration was under the federal government's authority and states could not create their own more stringent immigration laws.
The “law and order” party goes feral
So, as of right now, Texas is required to let the federal government cut the razor wire and maintain access to the border. Texas also must remove the buoys that ensnare migrants. Of course, neither of those things is happening. The Texas National Guard and Texas state troopers are still out there stringing razor wire and stopping federal agents from accessing the area.
Instead of obeying the courts, Greg Abbott declared an “invasion” at the southern border, asserting Texas has a constitutional authority to protect itself. He invoked Article 4, Section 4 of the Constitution, which requires the United States to “protect [the states] against invasion.” Since Texas is being invaded and the administration won’t stop it, Abbott argued that Article 1, Section 10 of the Constitution “reserves to this State the right of self-defense.”
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Except that’s not what the Constitution says. Article 1, Section 10 doesn’t mention “self-defense” at all. Instead, it says that no state shall, without the consent of Congress, engage in war “unless actually invaded.” But, as Professor Steve Vladeck explained to PBS News Hour, when that provision was added to the Constitution, it was when the federal military was small, and Congress was often not in session, necessitating that individual states might have to defend a border. He went on to say that there was no support in any materials from the time of the founding of the United States for Abbott’s notion that in the modern era, Texas could just say it was being invaded and ignore the federal government.
Additionally, as Mark Joseph Stern pointed out over at Slate, language Abbott used in his statement — that the federal government had “broken the compact” between the United States and Texas — is very similar to the language used by Southern states in their declarations of secession in 1860 and 1861. Abbott also said that “the supreme law of the land” supersedes “any federal statutes to the contrary.”
Make no mistake, this is a genuine constitutional crisis on two fronts. Abbott is refusing to acknowledge the Supreme Court’s ruling, thereby undermining the judicial branch. He’s also refusing to recognize the executive branch's authority by saying that Texas, not the federal government, controls a federal border.
Far too many conservative states agree with Abbott. Every Republican governor in the country, save for Vermont’s Phil Scott, has publicly said they support Texas’s right to defy the federal government. Oklahoma governor Kevin Stitt went on Fox and came dangerously close to saying that if federal troops were deployed to the border, they should refuse to obey the administration’s orders. Louisiana Rep. Clay Higgins posted that “the feds are staging a civil war, and Texas should stand their ground” and ignore the Supreme Court’s ruling. When asked by Fox News if this was a “come-and-take-it” moment, Sen. Ted Cruz declared that by defying the Supreme Court, Texas was “defending Texas and defending this country.”
The Republican governor of South Dakota, Kristi Noem, tweeted that if Texas needed more razor wire, she’d “load it into a pickup myself.” Noem’s comment is a reminder that the Trump era didn’t just usher in a worldview that GOP states get to do whatever they want. It also ushered in a gleeful cruelty where conservatives burnish their bona fides by making light of human suffering.
Biden has no good options — which is the point
It’s hard to say where this ends. The Supreme Court has already weighed in, but that was only on Texas’s request that the federal government be enjoined, on an emergency basis, from cutting the razor wire. No court has yet ruled on the substance of the matter, meaning there has been no complete review of all the facts and law in the case. The full case still needs to make its way through the lower courts, and it is almost inevitable that it will then be back up at the Supreme Court again, where it seems that at least four justices already agree with Texas.
Simply because the Supreme Court vote to vacate the injunction was a 5-4 split in favor of the federal government doesn’t mean an ultimate ruling on the case would come out the same. While Chief Justice John Roberts and Justice Amy Coney Barrett sided with the liberal wing on the narrow procedural question of whether an injunction was appropriate, there is no guarantee they’d side with the liberal wing once it hears the full case. Roberts and Barrett may have only believed that Texas was wrong to ask for an emergency injunction, but they could eventually side with the state in its quest to usurp the federal government’s authority.
Meanwhile, some of the worst people in the world are ready to help Abbott undermine American democracy. A Christian nationalist truck convoy is headed to the border, with leaders saying that “this is a biblical, monumental moment that’s been put together by God” and that “God’s army is rising up” to secure the border. Texas state Rep. Keith Self even went on Fox Business to promote the convoy. Jack Posobiec, in urging people to attend a rally this past weekend, tweeted that “we are right on the verge of Civil War with the government.” Members of The Donald message board, which became so toxic it was banned from Reddit, asserted that the five Supreme Court justices who had sided with the federal government “deserve to be executed as traitors.” Trump himself weighed in, calling upon "all willing States to deploy their guards to Texas to prevent the entry of Illegals, and to remove them back across the Border."
All of this puts the Biden administration in a very difficult position. If it sends troops to the border, it accelerates the conflict and gives Texas and other conservative states the opportunity to deploy their national guards. The prospect of a military standoff between 25 GOP states and the United States is not one the administration likely relishes. On the other hand, doing nothing emboldens Texas to continue enacting its twin goals of harming migrants and shifting the balance of power between the states and the federal government.
Either way, Abbott gets what he wants. He now has the full-throated support of conservative elected officials who don’t believe the federal government should have any authority if Democrats are in power, and he has private citizens willing to show the same eager violence as those who supported Trump’s insurrection. There’s just no way in which this ends well.
That’s it for today
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We’ll be back with more Wednesday. Until then — thanks for reading.