The Texas Conundrum

Does a particular state of the federal union have the right under the Constitution of the United States to prevent illegal entry—under federal law—of foreign nationals across the national borders of the federal union? That appears to be the question posed by Texas’ actions in deploying its National Guard to restrict cross border traffic at certain points, and to prevent federal agents of the Border Patrol from removing such restrictions. At least that’s my seat of the pants summary of the constitutional issues that have been raised.

Self identified conservatives are mostly/often/sometimes strongly supportive of Texas’ actions. I’m not sure about that, but polling has repeatedly indicated an overwhelming majority of Americans of all stripes to be opposed to the Zhou regime’s open border policies. Conservatives are outraged that the SCOTUS has recently rescinded a temporary order by a District Court that forbade the Feds from removing the border restrictions set up by Texas. Texas is defying the SCOTUS, and Oklahoma and Florida have indicated support for Texas—whether that support is rhetorical, legal, or enforcement in nature remains to be seen. The question arises, what agency of the federal government could enforce the SCOTUS decision? The US military? The FBI? Armed agents of the various border and immigration agencies? The US Marshall Service?

In a comment recently I stated my view that the Constitutional issues are not clear. Today, Karl Denninger has written a post in which he maintains that the Constitution does, in fact, authorize Texas to adopt such measures as it has put in place. It may be useful to take a look at his arguments. KD cites two provisions of the Constitution, reproducing a paragraph from a statement by TX governor Greg Abbott:

Oh, He Went There (Texas)

James Madison, Alexander Hamilton, and the other visionaries who wrote the U.S. Constitution foresaw that States should not be left to the mercy of a lawless president who does nothing to stop external threats like cartels smuggling millions of illegal immigrants across the border. That is why 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.”

It may be well to also reproduce the full text of the two provisions, since the text of the Constitution does not include Abbott’s statement about “the States’ sovereign interest in protecting their borders.”

https://www.law.cornell.edu/constitution/articlei#section10

Section 10.

...

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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.

Paragraph 3 is the operative section. The question of interpretation is, what did the Framers mean by an “invasion”. Off the top of my head I would argue that, since the references in general are to state involvement with “foreign powers” and to states engaging in “war”, when we come to the concluding statement about repelling an actual invasion, the Framers probably envisioned “invasion” to mean some sort of armed incursion, carried out by armed violence. Thus, the SCOTUS is left to decide whether illegal entry to the United States, when permitted by the federal government, constitutes an “invasion” that may be resisted by the states by armed force. If the federal government does deploy border control personnel, does that preempt state action to exercise control over state borders that abut the territory of a “foreign power”? Those aren’t easy questions.

Does Article IV help us understand this problem?

https://www.law.cornell.edu/constitution/articleiv#section4

Section 4.

The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.

Again, we are faced with the question of interpretation: What is an “invasion”? But border safety is a legitimate state interest, as is the threat to a republican form of government if subjected to unrestrained migration. What is the SCOTUS to do, when it lacks real enforcement assets to deploy against a federal regime that refuses to acknowledge such basic responsiblities as the safety and health and civic welfare of its citizens?

Those who criticize the SCOTUS should, in my view, at least recognize the difficult position in which the SCOTUS has been placed. On the one hand, it seems clear that the federal government is refusing to enforce laws in which the separate states have a clear interest—the reckless disregard for federal laws by the federal government personnel who are sworn to uphold those laws has a direct and negative impact on the states and local governments ability to conduct their rightful obligations with regard to providing safety their residents—both from crime, from financial burdens beyond their means, and from dangerous diseases. But …

On the other hand, it’s recognized that law enforcement generally is allowed some discretion in enforcing the laws. These issues are usually resolved by political means, i.e., by replacing recalcitrant officials through the election process. Can states step in to impose their own solution against the discretion of the federal government in circumstances like these?

Disputes of these sorts—pitting either the SCOTUS against a lawless federal government, or states against the federal government—have not ended will in the history of the United States. One thinks immediately of Andrew Jackson’s defiance of the SCOTUS in ethnically cleansing southern states by forcibly deporting Indian tribes west of the Mississippi. Jackson’s decision to ignore the SCOTUS ruling appears to have been based, in part, on fears that enforcement of it might have placed federal troops in direct conflict with the Georgia militia and other state militias. If the SCOTUS ultimately rules in favor of Texas in the present case, will the feds back down? If the SCOTUS rules for the federal government, can the feds enforce the ruling by armed violence against Texas’ National Guard? One can imagine that the SCOTUS would prefer to have these questions settled in a national election—in November of this year.

Then there’s the issue of the Civil War. The SCOTUS undoubtedly does not want to revisit its own rule in presenting a tragic war that its own efforts either failed to prevent or actually contributed to. So, I wouldn’t be too eager to criticize the Court—until they make a decision. For now they may be playing for time. After all, as I stated in my comment, these extreme situations are perhaps best resolved through political means—even when the current Zhou regime (arguably imposed on the nation by fraud at the highest levels, including AG Bluto Barr) appears intent on precipitating a national crisis. In such a situation, TX governor Abbott may be doing the right thing by staging a political crisis that the feds aren’t in a position to control without resort to extreme force that would tear the country apart.

Abbott is using his best judgment. I find his actions defensible, even if it does involve brinkmanship. The SCOTUS will doubtless wish to take his actions, and the implications, into account in attempting to guide the country back into the path of constitutional order. Delay may be the best way forward for the SCOTUS at this point. At this point the SCOTUS decision avoids taking a constitutional stand on an issue that they certainly hope will go away and never be raised again. Let’s pray that the nation—which has a clear mind on these issues, based on polling results—will make its will known. The SCOTUS itself is a weak institution for holding the nation together when matters reach this point.