Right now, the governor of Texas and up to 25 other states are in open defiance of the US federal government. Unless you are terminally online, though, you might have missed it. Establishment media outlets like The New York Times have so far refused to cover this governors’ revolt, although the newspaper of record did amplify the complaints of nine Democratic governors.
Let’s back up. In 2012, the state of Arizona, which shares a border with Mexico, lost a case at the Supreme Court (Arizona v. United States). The Court ruled that federal immigration law is supreme over state laws; the states, therefore, cannot enforce immigration law or prevent people from crossing the southern border. Federal supremacy is an established principle of American constitutional law, but the negation of state authority to hinder and deal with illegal immigration was unprecedented. The Supreme Court decided that this was the federal government’s exclusive responsibility. To borrow Douglas Adams’s phrase, this has made a lot of people very angry and been widely regarded as a bad move by those on the right. Either way, it is now the law of the land.
Since then, the federal government has largely abdicated its responsibility to enforce the southern border or immigration law. More illegal immigrants than the total population of 33 states have been allowed into the country within the last four years alone.
Conservatives are outraged. One of the oldest responsibilities of any state is to make sure that that state’s borders are secure. If a state’s borders are not protected, its distinctiveness from other states is non-existent. Quite simply, a country without borders is not a country. For the last 14 years, elements of state governments have tried, and largely failed, to claw back any scrap of authority they can from the federal government in the area of immigration. At times, state law enforcement has interdicted illegal immigration on human trafficking grounds, other times on drug smuggling grounds and still other times on grounds as simple as trespassing. But no matter what, the federal leviathan has asserted itself in the arena, and the states have quailed — until now.
Texas has taken matters into its own hands
The state government of Texas has decided to stop playing around. On September 23, 2023, Governor Greg Abbott called up elements of the Texas State Guard and evicted units of the United States Border Patrol (USBP) from Shelby Park, a vital sector of the southern border abutting the Rio Grande River, where the tide of illegal immigration is often highest. Abbot has also had barriers of concrete, shipping containers and razor wire constructed. The federal government lodged a lawsuit against Texas. The case has made its way to the United States Court of Appeals for the Fifth Circuit with a speed that only such a critical case could have. The circuit court issued an injunction against the federal government, forestalling the federal authorities from removing Texas’s fortifications.
The government appealed that injunction straight to the Supreme Court. The Court vacated the injunction without issuing an opinion. The vacating of the injunction gives the federal authorities the right to remove Texas’s fortifications while the case proceeds. Generally, the Court’s ruling on an injunction serves as a bellwether for its decision on the case itself. Therefore, this ruling would typically indicate that Texas’s efforts will fail on the merits. In simpler, less contentious, times, that is where the drama would have ended. Texas would have decried the decision, vowed to fight the case on its merits and allowed the USBP to remove the fortifications.The conclusion of the case would have been the end of the debate.
Not this time. Abbott has defied the Court’s order vacating the injunction. The Texas Guard has actively denied the USBP access to the park to remove the fortifications. Moreover, they have added more fortifications to the border after the injunction was vacated, further obstructing the removal process. The Texas Guard and the USBP are still currently in a standoff.
Abbott invokes the compact theory of federalism
On January 24, Abbott issued a statement accusing the federal government of breaking the “compact” between the states. This language borrows directly from the Confederate state of Virginia’s 1861 secession ordinance. Abbott has thus invoked the “compact theory” of American federalism. According to this theory, the US constitution is a treaty between the states. If the states or the federal government violate this treaty, every party is free from its obligations. This theory was the rationale for the Confederate states’ secession from the Union. As early as 1793 (Chisholm v. Georgia), and again after the Civil War in 1869 (Texas v. White), the Supreme Court rejected this theory, insisting that the United States was not a treaty organization but a sovereign republic. By invoking the compact theory, then, Abbott is calling into question the federal government’s claims to sovereignty.
Abbott is not calling for secession yet. Instead, he says that, since the federal government has failed to fulfill the compact, it falls on the states to uphold it. If America is a marriage, this is an accusation of adultery. It does not say “divorce” yet, but it could lay the groundwork for it.
Abbott’s statement lays out the derelictions of duty of which he accuses the Biden administration. President Joe Biden has failed to enforce federal immigration law by refusing to prosecute immigrants for illegal entry. He argues that the federal government has breached Article IV, Section 4 of the constitution: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion.”
Texas must thus invoke its right to self-defense laid out in Article 1, Section 10, Clause 3: “No State shall, without the Consent of Congress … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” Abbott invokes Supreme Court Justice Antonin Scalia’s dissenting opinion in Arizona v. United States. In that opinion, Scalia wrote, “The State has the sovereign power to protect its borders more rigorously if it wishes, absent any valid federal prohibition.”
Texas has said it is ready to rumble — whether in defense of the whole or in defense from the whole remains to be seen.
In happier, less contentious times, Abbott’s would have been little more than a fever-dream manifesto. The statement reads like something out of an alternate history novel. But, at the time of writing, up to 25 state governors, all Republicans, have vowed to support Texas in a looming, real showdown with the federal government. Will the federal authorities blink? I don’t know. No one knows. This is a dispute with little precedent. Cooler heads probably will prevail and reach a compromise deal.
But they might not. The federal government doesn’t like being challenged or having its authority eroded. And make no mistake, no matter what happens, the federal government’s authority will be eroded by this somehow, whether the federal authorities back down, and their authority is eroded, or Texas backs down, and we see the USBP open the border to allow millions more illegal immigrants into the country. That doesn’t even begin to countenance the worst thing that could happen from a major standoff between armed enforcers of state and federal governments.
Will that happen? I do not know. But I know that, on the morning of April 12, 1861, precious few people woke up thinking they’d be at war by the time they went to bed.
The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.
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