A Constitutional Crisis And Our Future

A Constitutional Crisis And Our Future

“The Constitution was made for the people and not the people for the Constitution.” (Theodore Roosevelt)

The dispute between Texas and the Biden Administration over our southern border has created a major constitutional crisis.[1] A crisis that threatens both our Constitution and our Constitutional Republic.

On January 20, 2021 Biden was sworn in as the 46th President and on that same day signed an Executive Order halting construction on the southern border wall.  From that day forward, Biden implemented series of disastrous border policies that required him to ignore federal law and violate the Constitution.  As a result of these deliberate acts the number of illegal immigrants streaming across our southern border increased from 405,036 in Fiscal Year (FY) 2020 to 1,956,519 in FY 2021; to 2,766,582 in FY 2022; to 3,201,144 in FY 2023; and for the first two months of FY 2024 a stunning 617,865 illegal immigrants crossed our borders.[2]

That’s a total of 8,542,110 illegal immigrants that we know of.  The number we cannot accurately determine are “gotaways” – illegals who evade the Border Patrol. As close as I can determine, it is estimated that the number of gotaways is between 20% and 28% of the number of known illegal immigrants.  Therefore, including the gotaways brings the total number of illegal immigrants who entered the U.S. since 2021 to between 10,250,000 and 10,933,000 people.

Texas’ 1,248 mile border with Mexico is the longest of any state, and as a result, Texas has been bearing the brunt of illegal immigration.  To relieve the adverse impact on his state and attempt to force the Biden Administration to start enforcing the laws, Governor Abbot implemented several polices including:

• bussing illegal immigrants to “sanctuary cities” and “sanctuary states;”
• erecting a river barrier;
• erecting a makeshift wall in some areas with shipping containers and/or razor wire;
• passing a state law allowing Texas LEO to arrest those who are in Texas and have entered the U.S. illegally, and for Texas judges to order them removed from the country. That law is scheduled to go into effect in March 2024.

As I’m sure you’ve guessed the feds have not fallen in love with Governor Abbot’s actions.  However, instead of securing the border, the DHS ordered Border Patrol and other federal agents to cut the razor wire and remove other barriers Texas erected.  Texas countered by filing a lawsuit against the federal government entitled  State of Texas v. U.S.  Department of Homeland Security seeking to prevent the federal government from cutting and removing approximately 29 miles of razor wire and other barriers it had set up in the area of Egal Pass, TX, including in a park owned by the local government.  Abbot also barred federal personnel from the park.

The trial court initially granted a temporary restraining order preventing DHS from cutting the wire or removing other barriers, but ultimately ruled for DHS and denied Texas a permit injunction.  Texas appealed to the 5th Circuit Court of Appeals who reinstated the injunction pending a hearing on the merits.  DHS then petitioned the Supreme Court to vacate the injunction, which the Supreme Court did in a short 3 sentence order dated January 22, 2024.  I want to be clear that this order only vacates the injunction preventing the federal government from cutting the razor wire and removing other barriers Texas has installed.  It is not a ruling on the merits of the case, which is scheduled to be heard by the 5th Circuit on February 7, 2024 and does not enjoin Texas from doing anything.

Governor Abbot released a scathing statement addressing the Supreme Court’s decision lifting the injunction.  Though all of it’s worth a read, the last paragraph is the important one:

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.

Article I, §10 states “No State shall, without the Consent of Congress…engage in War, unless actually invaded…”  Article IV, §4 states “The United States…shall protect each of them [states] against Invasion…” (emphasis mine).

What Abbot is arguing is the flood of illegal immigrants into Texas is an invasion and therefore, the federal government has violated its constitutional duties under Article IV, §4 and Texas can, and will protect itself as allowed under Article I, §10.  Is Abbot correct in his interpretation?  I think so, but the answer turns on whether a massive influx of illegal immigrants is an “invasion” within the meaning of the Constitution.  This is uncharted territory.

Even though Abbot is still barring federal agents from the public park near Eagle Pass and is continuing to lay more razor wire, he is not violating the terms of the Supreme Court ruling lifting the injunction.  However, Abbot’s actions have certainly made the Supreme Court’s ruling irrelevant.  How can the Border Patrol cut the wire the Supreme Court says they can cut, when they are not allowed into the park where much of the wire they want to cut is located?

This in-and-of-itself is a constitutional crisis.  However, there’s more.  There are significant players on both sides of the political isle throwing their support behind Abbot or Bidden

Those lining up behind Abbot’ and Texas and urging him to stand his ground, include Rep Chip Roy (R-TX 21) and the governors of 26 states.[3]  Gov. Noem (R-SD), seems to be the most outspoken threatening to send razor wire to Texas if they need it, and implying she could send the South Dakota National Guard.  How many, if any of these Governors will actually send their National Guard to support Texas in closing the border?  No one knows yet.

On the opposite side there are a growing number of Democrats, such as Rep. Joaquin Castro (D-TX20), Rep Greg Casar (D-TX35) and Beto O’Rourke calling for Biden to preemptively federalize the Texas National Guard.  Any attempt to federalize the National Guard could, and I believe would, be a catastrophe.  I am not sure how many Guard members would even head the call and how many would ignore it and remain in Texas as the state’s military force…and neither is Biden or anyone else.

The statements coming out of Texas responding to calls for Biden to federalize the Texas National Guard indicate that Texas does not believe an attempt by Biden to federalize the Guard would work.  Rep. Tony Gonzales (R-TX23) weighed in stating Biden “better not — you know he may be a fool, but I hope he’s not an idiot…If we go down that route… talk about lighting a match to a very already delicate situation…”  Texas Lt. Gov. Patrick also warned Biden not to act against Texas or the Texas National Guard. (video at the link).

So, let’s recap:

• Biden and Texas are in a face-off over the broken southern border;
• 26 states have come out in support of Texas;
• Both Gov. Abbot and his Lt. Gov. have warned Biden not to act against Texas;
• High profile politicians split along partisan lines are throwing their support behind one or the other;
• Texas, while not directly ignoring a Supreme Court ruling, has rendered it irrelevant.
• Statements coming out of Texas’ leadership make it clear that they’re going to secure the border regardless of what Biden does or the Supreme Court rules.

There’s no doubt that we’re in a constitutional crisis.  Whether this crisis can be resolved without shooting depends on (1) Biden and Abbot reaching a political settlement or (2) the Supreme Court giving the parties involved an off ramp.

A political settlement is possible, but I doubt Abbot would accept anything less than Texas playing a significant part in securing the border.  In fact, I doubt at this point Abbot can accept anything less.  What exactly does this mean?  At the very least I believe any agreement would have to allow Texas to build and patrol whatever barriers they wish.  It would also have to allow Texas authorities to arrest those who entered the US illegally and the federal government to become much more aggressive in enforcing the laws and securing the border.

A political settlement along that allows Texas to be the face of border security  would allow Biden to claim he’s getting tough on illegal immigration and still maintain that he hasn’t given up on open borders, a position he needs to maintain his base.  Abbot would get what he and Texas want – a border that is secure.  Texas might have to carry most of the load, but Abbot has already said they’re going to if the federal government doesn’t.  Additionally, it would allow the Supreme Court to sidestep the issue and not have to worry about its legitimacy being called into question.

I believe this is the best possible resolution to the constitutional crisis we’re in.  It resolves the crisis peaceably and without damaging the Constitution or the legitimacy of the Supreme Court.  It also sets a precedent for the states to flex their political muscle and reclaim some of the authority they were guaranteed under Article I, §8 (enumerated powers) and the 10th Amendment (states rights) that have been eroded over the years.

The second possibility is the Supreme Court provides the parties an off ramp.  This is still doable, but a bit trickier.  The Supreme Court would have to rule for Texas in the case now pending before the 5th Circuit, which would allow Biden to throw his hands up and say he tried, but the evil right-wing Supreme Court prevented him from doing what the Constitution required.  It would also allow Abbot to continue to secure the Texas/Mexico border.

The negative to this solution is that the legitimacy of the Supreme Court would no doubt be attacked from the left, just as it was after they handed down Dobbs v. Jackson Women’s Health Organization (2021) that overturned Wade v. Roe (1973).  Though I believe the Court would survive calls to “expand” the court, which means to pack it with Biden appointees, there is a risk that the attacks would further erode the faith Americans have in the Supreme Court.

The worst possible outcome would be for the Supreme Court to rule for the Biden Administration.  If Abbot and the rest of Texas are going to hold firm, and the indications are they will, then Texas will ignore the ruling and continue to secure the border.  Biden would then have to move against Texas or face heavy criticism that he’s not discharging his constitutional duties. At best this would result in an armed standoff, at worst shooting starts.  Even if none of the official parties started the shooting, any miscue by a federal official against a citizen in Texas, or by a citizen in Texas against a federal official could be the match that lights the fuse to the powder keg.

Even if the crisis is resolved peaceably, the fact that a state, or states, ignored a Supreme Court ruling – justified or not – and challenged the federal government militarily would significantly undermine the faith Americans have in the Constitution.  At the very least it would severely undermine the authority of the Supreme Court and perhaps render it nothing more than an advisory panel.  It would also undermine our democratic republic by setting the precedent that states are now free to interpret the Constitution as each sees fit.  In other words, this could lead to a ‘post republic’ form of government that is at best a federation of states along the lines of the Articles of Confederation, which was a disaster.

In this scenario, if the crisis is not resolved peaceably then the country would enter a second civil war.

My Take.

There is no doubt that we’re in the midst of a major constitutional crisis that needs to be resolved.  There is also no doubt that our political leadership must act with caution and in the best interests of our nation.  I also firmly believe that for the sake of our country Abbot, Texas, and the other states must hold the firm.

Having said that, Biden, Abbott, and everyone else involved must do everything possible to achieve a political settlement that will result in a secure border and not fray the Constitution.  However, if a political settlement that secures those two goals is not achievable, then Texas with the support of the other states must ignore the federal government and secure our southern border regardless of the consequences.  To do otherwise and allow the border to remain open will undermine the Constitution, destroy the rule of law, and result social upheaval and violence which at best would equal that which we see in Europe today, and at worst send the United States on a path to a second civil war.

Since the survival of our nation depends on securing the southern border, we lose nothing by standing firm.  Even the worst-case scenario of standing firm is no worse than the best case scenario of not standing firm – the destruction of our nation.

[1] For purposes of this article I’ve modified and expanded the definition offered by Victoria Nourse, law professor, Georgetown University to  “A dispute between branches of the federal government, or between the federal government and one or more states, in which neither side backs down; and at least one of the parties refuses to accept the ruling of the judicial branch.”

[2] The federal government’s fiscal year runs from October 1 to September 30.

[3] States supporting Texas: Alabama, Alaska, Arkansas, Florida, Nevada, Idaho, Indiana, Kentucky, Louisiana, Utah, Mississippi, Ohio, Tennessee, Montana, Wyoming, New Hampshire, North Dakota, South Dakota, Nebraska, Kansas, Oklahoma,  Iowa, Missouri, West Virginia, Virginia, Georgia.