By Ryan McMaken – January 25, 2024

In what can only be a surprising move, Texas Governor Greg Abbott has openly defied the White House and invoked Article 1 section 10 of the US constitution as a reason to ignore the Biden Administration’s demand that the State government cease erecting a border barrier along the Texas-Mexico border.

For months, the federal government has ratcheted up threats against the state government and condemned Texas for erecting razor-wire barriers and other impediments to migration. The White House has sued to force the demolition of these barriers in further efforts to increase foreign migration into Texas. Texas took legal action of its own against the federal order. However, on Monday, the US Supreme Court ruled that the Federal government could proceed with its plans to cut the razor-wire barrier.

Texas officials, however, have refused to grant federal agents access to the border. This extends a Texas policy that has essentially ejected federal personnel from a 2.5 mile stretch of the Rio Grande in Eagle Pass which has been used extensively by coyotes, cartels, and migrants as an entry point into the US.

The situation continues to escalate, and now Washington Democrats are demanding that Biden “take control” of the National Guard and turn it against the state government.

The situation is shocking because Republican-controlled state and local governments rarely show any willingness to oppose federal usurpations of local authority. For decades, the standard operating procedure of Republicans has been to instantly surrender the second anyone in Washington utters the phrase “supremacy clause” or the Supreme Court makes a ruling. Democrats, on the other hand, routinely scoff at federal supremacy, such as with “sanctuary cities.”

This is a rare instance in which a Republican-controlled state government has not immediately bent the knee in the name of national unity and “law and order.”

So, what exactly does the Texas governor’s declaration say? Overall, it makes the case that the Biden administration has been ignoring federal immigration laws and illegally withdrawing border-control operations from the Texas-Mexico border. Abbott concludes:

Under President Biden’s lawless border policies, more than 6 million illegal immigrants have crossed our southern border in just 3 years. That is more than the population of 33 different States in this country. This illegal refusal to protect the States has inflicted unprecedented harm on the People all across the United States.

If that were all, we’d just chalk this up to a document that amounts to little more than a letter to the editor. But then Abbott says that the US Constitution provides a remedy for the situation:

the Framers included both 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 final paragraph is where it gets interesting. Abbott writes:

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. The Texas National Guard, the Texas Department of Public Safety, and other Texas personnel are acting on that authority, as well as state law, to secure the Texas border.

Abbott is essentially saying that federal supremacy in this case has been rendered null and void by a federal refusal to enforce federal law.

Can he get away with it?

For clarity, let’s look at Article 1, section 10. It 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 actually invaded, or in such imminent Danger as will not admit of delay.

The key phrase here is “unless actually invaded.” Whether or not the current flood of migrants across the border constitutes “invasion,” as stated here, is perhaps debatable. However, what is self-evident here is that it is up to the state government to determine for itself whether or not the state is being invaded. After all, the whole point of the section is to grant certain powers to states outside the authority of the federal government. If the federal government also gets to determine for itself whether or not the state is being invaded, then the section is pointless.

So, an honest reading of this text ought to preclude the Biden administration or US Supreme Court coming back and saying “you’re not being invaded, now do what we say.”

The governor’s letter is also well-worded in the way that it declares the state’s actions to be directly authorized by the US constitution and therefore not subject to mere federal statutes. This will be useful in resisting any federal attempts to federalize the Texas National Guard.  That is, if the Biden administration attempts to take control of the Guard, as it is generally authorized to do in federal law, Abbott could say “our right to command the National Guard under Article 1, Sec 10 supersedes your claim to federalize the Guard under federal statute.”

After all, the details of the president’s authority to “call forth the militia” relies primarily on federal statutes, and not on the constitution. Historically, state governments have had wide latitude to veto presidential attempts to use state troops. Those state veto powers were largely abolished in the past fifty years by conservatives, Cold Warriors, and other Pentagon simps.

[Read More: “When State Governors Tried To Take Back Control of the National Guard” by Ryan McMaken.]

The way the Abbott declaration is worded, he could be making a case that he has constitutional authority over presidential attempts to seize control of the National Guard.

The Situation Has Moved Beyond Legal Arguments 

As the situation progresses, we are likely to hear much from legal scholars about what court said this and what judicial text said that. Yet, in crises situations like the current one, legal rulings will grow increasingly irrelevant. Politics and public opinion will take over as the real criteria for what is feasible for each side.

At this point, the Biden Administration is clearly motivated to move into Texas, take control of the situation, and throw the border open. In an election year, however, this will be problematic for Biden with many constituencies. Many will see the situation for what it is: a powerful Washington establishment, with no skin in the game in southern Texas, shows up to tell the locals that they are hereby ordered to house limitless numbers of unscreened migrants in their own neighborhoods, and for the taxpayers to cover the cost. With the legacy media on his side, Biden may be able to get away with it.

Here’s what should happen, though: any federal agents that attempt to intervene with state agents on the border should be arrested and tried for obstruction and trespassing under Texas law.  Federal attempts to take control of the National Guard should be declared non-starters by the governor under Section 1, Article 10. Federal agents should be treated as the criminals they are. After all, the ATF, FBI, federal Border Control, NSA, and countless federal regulators are all unconstitutional agents with no authorization within the constitution itself. (Federal control over immigration is an invention of the late nineteenth century.)

[Read More: “American Immigration Policy 160 Years Ago” by Ryan McMaken]

It’s unclear what Washington’s next move would be. After all, the feds are used to unquestioning obedience from state governments. It is a sure thing that the White House would immediately seek out retaliatory action, such as denying Texans access to federal funds—which Texans already paid for through their payroll and income taxes. The Defense Department will send its stooge generals to threaten state authorities for not taking orders from the Pentagon—in a manner similar to its opposition to the Defend the Guard bills.

If the Supreme Court keeps issuing rulings that are subsequently ignored, then the SCOTUS will just make itself look ridiculous. It will likely avoid this, and thus the situation will rest on political realities, not legal ones. What is nice to see, however, is that the aura of authority around the central government is gradually being pierced and destroyed. Such things are long overdue.

Mises Institute