Despite a Supreme Court ruling that federal agents are allowed – for now – to cut the wire and re-open the border, the standoff between Texas and the Biden administration continues. Governor Greg Abbott isn’t backing down, and the GOP is standing with him. But who actually “owns” the land, regardless of what the deeds say? Who has the ultimate authority along the border, even on state- and privately-owned ground?
America Takes Sides
A group of 25 Republican governors* released a statement Thursday, January 25, supporting Governor Abbott’s claim that Texas has a “constitutional right to self-defense.” While the state remains embroiled in a legal battle with the Biden administration – which the Supreme Court has yet to decide, despite the short-term ruling issued Monday – Governor Abbott has kept Shelby Park in Eagle Pass, a popular corridor for illegal immigration, locked down with the Texas National Guard and the Texas State Police. Rows of razor wire line the border – and more is being added after the High Court said federal agents could continue their task of clearing it away. Border Patrol, however, still isn’t allowed in the park.
Of the 27 GOP governors in the US, only two* didn’t sign on to this letter: Vermont’s Phil Scott and Greg Abbott himself – who, of course, might have come away looking a bit silly had he signed a letter that declares he stands behind himself.
Former President – and current GOP front-runner – Donald Trump also spoke up for Governor Abbott, as did independent candidate Robert F. Kennedy, Jr. and Senator John Kennedy (R-LA).
That Trump supports Abbott against both Joe Biden the man and illegal immigration the issue comes as no surprise. “Those Biden let in should not get comfortable because they will be going home,” he posted on Truth Social. Support from former Democrat RFK, Jr., on the other hand, may have shocked some – though perhaps it shouldn’t, given his recent campaign positions and that he’s running against Biden as well as Trump.
“Texas is right. Biden’s failure to secure the border leaves states no choice but to take matters into their own hands,” Kennedy posted on X. “As President, I will end this humanitarian crisis once and for all. I will secure the border and destroy the business model of the drug cartels. A country without borders is not a country at all.”
Sen. John Kennedy, on the other hand, approached the subject from a more economic angle. “Pres. Biden’s failed border policies have wreaked havoc in every corner of our country, including Louisiana,” he tweeted. “According to one estimate, Louisianians pay an additional $4,613 PER illegal migrant – that’s about $604 MILLION per year – in state taxes because of illegal immigration.”
The left, of course, accuses Abbott – and Republicans in general – of interfering with the federal government just for the sake of making hay over the immigration issue leading up to Election Day. Some even go so far as to advocate Biden federalize the Texas National Guard and take control by force.
The Texas Border – Who Owns It?
The final paragraph of Section 10 of the US Constitution reads:
“No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless invaded, or in such imminent Danger as will not admit of delay.”
Note that there are three caveats to the rule that states won’t do these various things. First, Congress could give permission. Second, the state might be invaded. And third, the state could face “imminent Danger as will not admit of delay.” That last item is vague – likely intentionally so – and allows plenty of room for interpretation (presumably the courts’ job) in case something other than an actual invasion threatened a state immediately enough as to leave no time to consult Congress before acting.
Since the Constitution says states can’t do these things without meeting one or more of those exceptions, a strict reading reveals that, in the presence of such a circumstance, they can.
So, if the flow of migrants illegally crossing the border can be legitimately considered an invasion, then Governor Abbott does, in fact, have the constitutional right to do any and all of the otherwise forbidden things in that paragraph, including defend his state by force of arms.
It’s clear, then, that Governor Abbott didn’t just pull this idea out of the ether; it rests upon a firm and logical constitutional foundation – assuming, of course, it’s reasonable to call what’s happening in Texas an invasion.
A Question of Supremacy
The question, then, is who has the supreme claim to the “supreme law of the land”? The Biden administration has been cutting the razor wire seemingly for no reason other than to allow illegal immigrants to cross. The president’s policy is that – despite his own claims otherwise – the border is open, and the US government won’t stop people from crossing. So, who gets to define the issue? Are hordes of immigrants coming to America in a way that’s perfectly acceptable to the Biden administration’s policies, or is a besieged Texas facing an invasion it must fight off because the federal government simply won’t?
It came to the US Supreme Court justices to decide that question. And, while they didn’t (surprise, surprise), they did issue a short-term ruling on Monday, January 22, that allows the Biden administration to cut the wire. This decision overturned the injunction put in place by the Fifth Circuit Court of Appeals, which forbade federal agents from cutting wire on state or private land, but it is not the answer to the big question. That will, presumably, come later. As Liberty Nation Legal Affairs Editor Scott D. Cosenza, Esq. explained:
“The ruling doesn’t make a final decision on the facts; it is only about what actions are allowed while the case is making its way through the courts …
… Now, the case returns to a hearing on the merits in the district court, presumably an appeal before the Fifth Circuit Court of Appeals, and another go at the Supreme Court.”
“This is not over,” Governor Abbott declared after the Supreme Court, at least temporarily, took Biden’s side. In fact, with Donald Trump rallying Congress on the border and GOP governors uniting, it may be just the beginning.
* This article has been updated to fix an error in the count of governors who signed on in support of Abbott. Hat tip to the keen-eyed Liberty Nation reader who caught the mistake!