Alan Cunningham, PhD student at the University of Birmingham (UK), explains the ongoing conflict between federal and state rights on the Texas border...
In what proved to be a constitutionally fraught week, the Governor of the State of Texas, Greg Abbott, stated on January 26 he will oppose any measure to infringe on Texas’s placing of razor wire on the US-Mexico border, a move that has bolstered Texas nationalists and increased calls that Texas should secede from the Union.
This entire incident, which has been ongoing for the past few weeks, began when members of the Texas State Troopers and Texas Army National Guard (TXARNG) put up razor wire in a border town in the Lower Rio Grande Valley and reportedly blocked federal agents from accessing their staging ground during an emergency. While such an act could easily be considered obstruction of justice, it was believed the incident was resolved when the conservative-dominated US Supreme Court, in a 5-4 decision, “granted the Biden administration’s request to vacate the Fifth Circuit Court of Appeals’ injunction in a case involving razor wire placed along Texas’ border with Mexico…[paving] the way for federal officials to remove the wire,” with no dissenting or majority opinion given.
This court decision, which affirmed the “longstanding court rulings that the Constitution gives the federal government sole responsibility for border security,” was derided by many high-level Republican officials, including Texas Attorney General Ken Paxton, who stated, “The Supreme Court’s temporary order allows Biden to continue his illegal effort to aid the foreign invasion of America.”
Governor Abbott’s Complaint Against the Supreme Court
On January 24, two days after the Supreme Court ruling, Governor Abbott released a statement in which he not only vowed to rebuff any federal government refusal and violation but also outlined his own legal understanding of the Supreme Court decision and offered an explanation as to how they can disobey it.
In his statement, Abbott claims that President Biden has “refused to enforce” immigration law, violated immigration laws, and failed to perform his constitutional duties. Most relevant to the argument is Abbott’s justification for the Texas’s action:
Article IV, § 4, which promises that the federal government “shall protect each [State] against invasion,” and Article I, § 10, Clause 3, which acknowledges “the States’ sovereign interest in protecting their borders.”…The failure of the Biden Administration to fulfill the duties imposed by Article IV, § 4 has triggered Article I, § 10, Clause 3, which reserves to this State the right of self-defense. For these reasons, I have already declared an invasion under Article I, § 10, Clause 3 to invoke Texas’s constitutional authority to defend and protect itself. That authority is the supreme law of the land and supersedes any federal statutes to the contrary.
Abbott additionally states that both TXARNG, the Texas Department of Public Safety (which has authority over the Texas State Troopers), and any “other Texas personnel” as being capable of acting under that legal authority while further citing the dissenting opinion of the 2012 Arizona v. United States decision.
The Fallibility of Abbott’s Argument
Abbott and his supporters claim that the mass of migrants coming across the US-Mexico border constitute an invasion. The use of “invasion” here is coded. Not only is it used in an originalist sense, which has been repeatedly dismissed by constitutional scholars, but it also has deep historical ties to nativist, racist, and xenophobic tendencies. David J. Bier, Associate Director of Immigration Studies at the conservative Cato Institute, wrote in 2021 that every US court, the word’s usage in the Constitution, the founding fathers’ own papers, and even dictionaries from the time of America’s founding conclude the term invasion means:
“Armed hostility from another political entity” further illuminating that the term’s usage in immigration discussion is “a completely unserious attempt to demand extraordinary, military‐style measures to stop completely mundane actions…the goal of this nativist language warfare is nothing less than the removal of immigrant rights.”
For further reference, but not an official, authoritative legal statement, the Black’s Law Dictionary defines invasion as “an encroachment upon the rights of another; the incursion of an army for conquest or plunder.”
While some right-wing institutions, like the Texas Public Policy Foundation, have argued that the term invasion can constitute non-state actors, “provided their criminal activity reaches a scale or degree of organization that deliberately overthrows or curtails the lawful sovereignty of the state,” even they stop short of saying that all migrants constitute an invasion. Nonetheless, the governor’s usage and legal implementation of this term takes this definition not only to Mexican drug cartels but also to immigrants as a whole. Quite simply, there is no invasion on the US southern border—not in a legal or practical sense, only in a highly politicized and biased view.
Second, looking at this statement from a constitutional point of view, there are clear issues with the legal justification. To start, looking at the historical background to Article 1, Section 10, Clause 3, it is well established through the framing and text of the Guarantee Clause that it “was intended to be more than an authorization for the federal government to protect states against foreign invasion or internal insurrection.” Abbott’s justification also leaves out certain context, namely that a state can only engage in war if (1) actually invaded and (2) given the consent of Congress. As shown, the invasion argument lacks substance, but Texas has also failed to gain the consent of Congress; in fact, “the Supreme Court has adopted a functional interpretation in which only compacts that increase the political power of the states while undermining federal sovereignty require congressional consent.” In this case, Abbott’s statement and legal actions would undoubtedly increase the political power of individual states and undermine federal authority on immigration law and even more seriously require the consent of Congress.
Furthermore, Abbott’s intended use and justification through Clause 3 actually directly contradicts what Abbott wants to do. Steve Vladeck, a professor of national security law at the University of Texas School of Law, stated on X (formerly Twitter), “The authority for states to go to war on their own if ‘actually invaded’ was meant, as it has always been understood, to allow states to respond *until* federal authorities were able to do so — *not* to allow states to *override* any federal response.”
These misreadings of both “invasion” and Article 1, Section 10, Clause 3 notwithstanding, Abbott’s legal ground in which to enforce a state declaration of invasion or to make or enforce laws on immigration is completely baseless. The Supremacy Clause establishes that “the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions” and “prohibits states from interfering with the federal government’s exercise of its constitutional powers, and from assuming any functions that are exclusively entrusted to the federal government.” Federal law is the supreme law of the land, and any state laws may not violate the US Constitution.
As it relates to immigration, the Supreme Court has found repeatedly that only the federal government can make and enforce immigration law. Chae Chan Ping v. United States made immigration law a plenary power of Congress, while Fong Yue Ting v. United States held, “The right of a nation to expel or deport foreigners who have not been naturalized…is as absolute and unqualified as the right to prohibit and prevent their entrance into the country.”
The same Supreme Court case Abbott cites as justification for the enforcement of his state’s immigration laws, Arizona v. United States, holds that “states have no power to enforce the immigration laws themselves.” Abbott cites Justice Scalia’s dissenting opinion, which is in no way legally binding. The majority 5-3 decision upheld years of case law by finding that the federal government holds “broad, undoubted power [over immigration]” based on “the national government’s constitutional power to ‘establish an uniform Rule of Naturalization,’ and its inherent power as sovereign to control and conduct relations with foreign nations.”
Abbott’s legal justification for his actions and defiance of the Supreme Court’s ruling is legally unfounded and runs contrary to over 200 years of American jurisprudence, not to mention explicitly defies the ruling of a federal court. This constitutes a very real and serious constitutional crisis along the border. While Texas has long spoken of secession and many disregard such calls for it, it would be foolish to believe that such calls for it by elected officials, activists, and the public are simply “big talk.” Numerous Republican governors have been outspoken in their support of Abbott’s agenda and actions.
Such defiance of a legal ruling from the federal government cannot go unanswered. Two Texas Congressmen have already called for President Biden to federalize the Army National Guard to resolve the issue. While some may call this move excessive, I argue that a state government openly defying a legal ruling and causing a nullification crisis is more excessive.
There must be a strong display of power that informs Abbott, and the party supporting him, that federal law is supreme and any deviations from it while acting in a way that goes against a just and legal order will not be tolerated. The Constitution and the Constitution’s mouthpiece, the US Supreme Court, has spoken and cannot be overruled.
Alan Cunningham is a PhD student at the University of Birmingham’s Department of History. Any views, thoughts, opinions expressed are solely those of the author and does not reflect the views, opinions, or official standpoint of any of the author’s affiliations, including educational institutions and past & present employers.
Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.