The constitutional crisis that’s been building at the southern border reached a sharp point on Wednesday when Texas Gov. Greg Abbott asserted his state’s right to defend itself against invasion, arguing the Biden administration has “broken the compact between the United States and the States.”
It’s not an overstatement to say this is the worst constitutional crisis since the Civil War and that we’re in uncharted waters now. There have been times in our history when a state has defied the enforcement of federal laws, but we’ve never faced a situation where the federal government has refused to enforce its laws and even violated them. And because the border crisis involves the question of security, Abbott’s assertion of state authority cuts right to the heart of the question at hand, which is one of first principles: Does a polity have the right to defend itself, to preserve its existence in the face of invasion?
The answer is, of course, yes. The preservation of the polity must come before process arguments about whose job it is to enforce federal immigration laws. The state of Texas, in this case, has an authority that transcends that of President Biden and the Supreme Court. That’s precisely why the U.S. Constitution includes a clause explicitly recognizing a state’s right to act in self-defense when faced with invasion.
It shouldn’t have come to this, but Biden has not only refused to enforce federal immigration laws, his administration has been blatantly violating them for three years, triggering the worst illegal immigration crisis in U.S. history. Texas has borne the brunt of Biden’s dereliction of duty, and Abbott has at last decided to do something about it.
Specifically, Abbott has ordered the Texas National Guard and other Texas law enforcement agencies under his charge to take control of certain parts of the border, erect barriers, and apprehend those who attempt to enter the state illegally. This week, following the Supreme Court’s decision to side with the Biden administration and vacate an injunction that prohibited the feds from cutting razor wire Texas had placed across a stretch of border, Abbott went a step further. He declared that by failing to fulfill his constitutional duties to protect states from invasion, Biden has triggered Article I, Section 10, Clause 3 of the U.S. Constitution, which stipulates that states are not allowed to “enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded.”
With tens of thousands of illegal immigrants crossing into Texas every day, there is no question that Texas has been “actually invaded” and has the inherent authority, by virtue of its sovereignty as a state, to defend itself in the face of federal inaction. “That authority is the supreme law of the land and supersedes any federal statutes to the contrary,” wrote Abbott, invoking “James Madison, Alexander Hamilton,” and the other founders who “foresaw that States should not be left to the mercy of a lawless president who does nothing to stop external threat like cartels smuggling millions of illegal immigrants across the border.”
The upshot is that Texas troops will not stand down. They will not return control of Shelby Park, a municipal park in Eagle Pass that’s been a hotbed of illegal crossings, to the federal Border Patrol, as the Biden administration demands. Nor will Texas allow federal agents to cut or remove the razor wire and other barriers that it has placed along the north banks of the Rio Grande as deterrents to would-be illegal immigrants.
What comes next? Will Biden make good on his habitual boast, that you can’t fight the government because the U.S. military has tanks and warplanes? Will he send federal troops to wrest control of the border from Texas by force? That’s what some congressional Democrats are (quite recklessly) urging him to do, gleeful at the prospect of the crisis coming to blows. (Notice the identical language in these tweets from Reps. Joaquin Castro and Greg Casar, suggesting a coordinated effort.)
I’m doubtful Biden will go that far, though, partly because no one really disputes that his administration has abandoned its duty to secure the border and enforce federal immigration laws. The country has been flooded with as many as 10 million illegal immigrants since Biden took office and immediately went about dismantling the policies President Trump had in place to keep illegal immigration in check.
Whatever happens at the border in the near term, there’s a larger question looming over all this, and that’s the question of legitimacy. As my colleague Mark Hemingway noted in the wake of Abbott’s announcement, “[W]e have arrived at a far bigger legitimacy crisis than anything that happened under Trump, January 6 included, and it’s 100% Biden’s fault. Even Dem governors and politicians are outspoken about the insanity of his border policy, and yet he persists.”
When the chief executive of the United States, who has sworn to uphold the Constitution and faithfully execute the laws, steadfastly refuses to do either, in what sense does such an administration — or should we say “regime” — have real legitimacy?
Defending borders from invasion is, of course, one of the fundamental reasons governments exist. If a government does not do that, it would seem it has forfeited its legitimacy. Recall that the Declaration of Independence is mostly a litany of grievances leveled at the British Crown and Parliament that justify revolution. Among them is the charge that King George III had “abdicated Government here, by declaring us out of his Protection and waging War against us.”
The same could now be said of President Biden, who has abdicated government, declared border states outside of federal protection, and allowed a foreign invasion to proceed for years while he’s done nothing to stop it. Biden, not Abbott, has brought us to the brink. The question now is whether he and his handlers will plunge us over it.