President Biden has been derelict in his duties to protect our country’s borders. He rescinded sensible policies dissuading illegal immigrants from jumping the fence, and this soon led to a tsunami of fake asylum claimants flooding over our southern border. In just three years, apparently six million people have made it across.
Like most forms of government failure, the burden is not equally distributed. Border states have been hit particularly hard, and Texas has had enough.
Seeking to fix the problem—and also secure some clout—Governor Abbott sent the Texas National Guard along with the fully independent Texas State Guard down to the Rio Grande to secure the porous border.
Biden and His People Fight for an Open Border
Instead of joining forces and thanking locals for help, Biden and Alejandro Mayorkas, the Department of Homeland Security Secretary, are trying to continue the current farce. They challenged Texas’ policy of reinforcing the border in court.
They have also humiliated the Border Patrol by turning them into the welcome wagon, tasking agents with dismantling barriers, and directing the flow of illegal immigrants to processing centers. The administration has made it clear that it does not want to stop the flow of immigrants but merely wants to render that influx more orderly and less visible to the public.
Current policies, like giving the fence jumpers parole and court dates years from now, provide almost no disincentive for illegal entry. Illegals are allowed to stay and work for years until their cases are decided. The consequences of this insanity are severe and are now starting to affect the entire country. Immigration in these enormous numbers from the world’s most destitute people increases crime, reduces wages, and hurts the middle class.
Nonetheless, for all those same reasons, Democrats are big fans. They know illegal aliens or their kids will reliably vote for Democrats, a larger welfare state, and that their presence in such large numbers will undermine the quality of life for native-born Americans.
Immigration is a Federal Responsibility (and That’s Unfortunate for Texas’ Lawsuit)
Texas sued and obtained an injunction from the Fifth Circuit prohibiting the DHS’s dismantlement of the barriers Texas constructed pending the ultimate resolution of the issues on appeal. This week, the Supreme Court dissolved the injunction in a short order. This is not a final resolution, nor does it require Texas to do anything in particular. The Supreme Court has simply returned the parties to the status quo ante.
As much as I don’t like the policy here, the federal government’s authority to control immigration and the border is not really in doubt. There is a long line of precedents holding that immigration is almost exclusively a federal responsibility over which it has “plenary” power. Combined with existing preemption doctrines, this means that the federal government typically gets to decide who, how, and how much is undertaken to enforce immigration laws, and states are not allowed to interfere with that determination, either by independently seeking harsher or more lenient degrees of enforcement.
The case law views immigration rules and regulations as an adjunct to foreign policy. This is why the Clinton administration was able to intervene in an ongoing state court custody dispute to swoop up young Elian Gonzalez and send him back to Cuba to live with his father, even though his mother died at sea trying to bring her son to the United States.
Texas’ position is that the federal government has been so derelict in its performance that the states are entitled to engage in self-help. Although I am very sympathetic with Texas’ policy argument and, like every real American, am appalled by the de facto foreign invasion taking place on our borders, it would arguably conflict with established precedent to allow Texas to defy the federal government.
As the Department of Homeland Security argued in its brief seeking to reverse the Fifth Circuit’s injunction, “The court of appeals’ contrary ruling inverts the Supremacy Clause by requiring federal law to yield to Texas law. If accepted, the court’s rationale would leave the United States at the mercy of states that could seek to force the federal government to conform the implementation of federal immigration law to varying state-law regimes.”
There is still much to be done on these cases. But I expect it will be almost impossible for even the most conservative members of the Supreme Court to overturn long-established immigration precedents.
I am not just being contrary here. In the abstract, these are not even bad principles. Federal supremacy in the areas of its responsibility is set forth in Article 6 of the Constitution itself. And these same precedents are what empowered Trump to enact the ban on immigration from certain terrorist-supporting countries, among other salutary policies he enacted.
Plenary federal authority over immigration makes sense in almost every situation other than the one we find ourselves in: rule by a Quisling American president who is completely indifferent about the fate of the country and his countrymen.
A Dangerous Clash of Competing Sovereigns
Texas’ continuation of its policies without the protection of an injunction exemplifies the rebellious and independent spirit of Texas, and this is heartening. At the same time, the entire episode reminds one of the nullification crisis of the early 19th century, and, as such, it is rather dangerous. Texas has not merely challenged the federal government in court but declared its rights under the Constitution to defy certain federal statutes while deploying its own troops to create facts on the ground.
Governor Abbott has issued a strongly worded statement announcing his defiance of federal requests that Texas dismantle its border barriers. And, at the time of this writing, 25 additional states have expressed solidarity with Texas and its right to defend itself from an invasion. We now have two levels of government fighting over matters of policy and principal, each with well-armed men at its disposal.
I believe part of the reason this is happening is that everyone involved thinks that the risk of real violence is low. Biden, after all, could federalize the Texas National Guard in the same manner President Eisenhower did to desegregate Little Rock High School in Arkansas in 1957. This would take most of the power away from the Texas governor.
It seems that Governor Abbott calculated that because Biden’s unpopularity arose from his shambolic performance on the border, there is no politically palatable way Biden could use the military to stop Texas or open the border. The risk of defiance by the Texas National Guard also presents an unacceptable potential cost if Biden were to federalize the guard in order to control its actions.
Crazy as always, purists in Biden’s own party are asking for violence and crying “insurrection,” even though Texas is not actually defying any court order at the moment.
We haven’t had intergovernmental violence on any large scale since the Civil War. There were sometimes hints of it during the labor troubles of the early 20th century and also in connection with the civil rights movement, but the scale of any such conflict was minor. Today, state, federal, and local law enforcement generally cooperate with one another or at least stay out of each other’s way.
When societies devolve into internal conflict, it is rarely a grass-roots affair. Typically, these conflicts happen when one faction of elites is fighting another. During the final days of the Soviet Union, the regional party bosses became more nationalistic and dissatisfied with the central committee of the communist party. In fighting for their local rights, they eventually dissolved the entire union. In the American Civil War, the southerners rallied around their strong state governments in defiance of the federal government.
For all the recent talk about a “second civil war” and the grave danger of January 6, until now most of these claims were merely click bait. No one was really that worried, but things are getting real. An actual civil war is never more likely than when different levels of government are defying one another in a federal system.
Texas is making a stand on an issue where it is right on the policy merits, where the Texan and American public are behind it, and where it has put Biden in a “lose-lose” situation of either tolerating open defiance of federal authority or using force to open the borders to the hordes of third-worlders swarming our country.
But none of this is a guarantee that Biden or someone else will not do something stupid.
Higher Law
A shootout between federal and Texas forces would likely quickly shock the nation’s conscience and put the majority of the public on the side of “law and order.” This would not, however, resolve the issue. Both sides would claim that mantle, and each side would likely blame the other for starting or continuing the violence.
While I think the federal government probably has a strong legal argument that it can continue to pursue its misguided policies, in general, resistance to federal tyranny has to be creative. The best moves will not necessarily be consistent with the positions of yesteryear or the letter of the law. After all, the Boston Tea Party was illegal, and we live in a similarly fraught time.
Calls to respect the process presuppose that we live in a country filled with Americans, live under an honest and working federal government, and that court rulings come from a judiciary that is not corrupted by ideological activists who routinely ignore the Constitution. None of these conditions are presently extant.
Governments, constitutions, and laws do not last forever. They must be a product of consensus, they must further the common good, and there must be some agreement regarding who constitutes the nation. A “second civil war” is neither a likely nor desirable outcome amid massive ideological divisions, but it is a risk, and it is a risk worth avoiding.
Just as Trump’s election relieved some pressure on the existing system, so too would a more robust federalism that empowers states to act where the federal government is overburdened or unwilling to enforce its own laws, particularly on issues like border security.
For now, Texas is trying to solve a big problem not of its own making. While it may be acting “above the law,” its approach exposes the Biden administration as the militant defender, not of the nation, but of open borders. In today’s environment, that means Biden will lose politically, even if he prevails in the courts.
Christopher Roach is an adjunct fellow of the Center for American Greatness and an attorney in private practice based in Florida. He is a double graduate of the University of Chicago and has previously been published by The Federalist, Takimag, Chronicles, the Washington Legal Foundation, the Marine Corps Gazette, and the Orlando Sentinel. The views presented are solely his own.