It's Texas vs. SCOTUS right now. But Abbott should consider a surprise move that could pay off handsomely

The governor of Texas and his administration are making an remarkable and unprecedented claim about illegal immigration into his state

January 29, 2024
Opinion by John Yoo
As seen in Fox News

Texas Gov. Greg Abbott has dramatically raised the stakes in a confrontation with the Biden administration over illegal immigration from Mexico.  He has ordered state forces to lay down barbed wire along the Rio Grande River, and thus block federal Border Patrol from approaching the border.  His actions run directly contrary to the exclusive federal control over the border, as made clear by the Supreme Court, and threaten a conflict between federal and state militaries unseen since the darkest days of desegregation in the South.

Instead of inviting a breakdown of federal-state relations, no matter how deep the disagreement over border policy, Texas should instead invite the Supreme Court to overturn its precedent pre-empting any state role in immigration enforcement.  Congress can also play an important role by making clear its views on whether the calamity at the border qualifies as an "invasion" or "imminent danger" under the Constitution sufficient to justify a state’s resort to self-defense.  But unless Governor Abbott and his state and congressional supporters adopt this less confrontational, though also less immediately satisfying, approach, he will lose in the courts and may well lose control of his national guard units to Washington, D.C.

Texas officials certainly have the best of intentions.  The Biden administration has allowed the southern border to fall into chaos, with an estimated three million-plus illegal aliens crossing into the United States last year.  This record-breaking surge has imposed heavy costs on communities in Texas, Arizona, and California, created a route for the trafficking of people and drugs, and has led to thousands of deaths of migrants at the crossings.

President Biden bears primary responsibility for this failure.  Our constitutional system has recognized for almost 150 years that protecting the territory of the nation falls within the responsibilities of the federal government.  In The Chinese Exclusion Case (1889), the Supreme Court recognized the federal government’s inherent power to exercise the powers of national sovereignty, such as conducting foreign relations, protecting the national security, and controlling the border.  In a series of immigration laws, Congress ordered the executive branch to detain aliens entering the country illegally, provide hearings for those claiming political asylum, and to remove those here without a valid visa.

But pressured by the extreme left of the Democratic Party, the Biden administration has adopted policies that allow unprecedented flows of illegal aliens across the border.  The White House re-instated the DACA and DAPA programs, which allow aliens brought to the United States illegally as children (and their parents) to remain in the country.  It has adopted a policy to immediately release illegal aliens who claim political asylum while they await court dates years away.  It has terminated the Remain in Mexico agreement that held migrants in Mexico while they awaited resolution of their asylum claims.

After years of non-enforcement of the immigration laws, Gov. Abbott responded by summoning the military power of the state of Texas.  He initially sent Texas units of the national guard – the state militia, in constitutional terms – to block migrants from entering Texas, detain and expel illegal aliens, and continue construction of the border wall.  

He ordered the deployment of barbed wire along the Rio Grande, as well as floating barriers in the water, to block migrants from crossing into Texas.  The barbed wire also had the effect of preventing federal border agents from reaching the border; when they did, they removed the barriers in order to let aliens through for "processing," but not deportation – only enhancing, in Gov. Abbott’s view, the illegal flow of migrants into Texas.

Texas then upped the stakes by suing Washington, D.C., to stop the border patrol’s removal of the barbed wire on the Rio Grande.  Although he lost in federal trial court, on the ground that the federal government was immune to such suits, he won a preliminary injunction in the federal appeals court in Texas, which ordered the U.S. Department of Homeland Security to stop interfering with the barrier.  

Last week, however, the Supreme Court lifted the injunction and allowed the United States to continue removing the barbed wire while the appeal proceeds on the merits, perhaps ultimately to the Supreme Court.  Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh would have allowed Texas to continue – a powerful signal that Texas might prevail at the Supreme Court when the full merits case gets there.

But instead of relying on the judicial process to reverse Supreme Court precedent ousting the states from any role in border control and immigration, Abbott threatens to trigger a confrontation between the federal and state governments of a kind unseen since the South’s shameful resistance to Brown v. Board of Education.  

Texas could claim that federalism allows states to act in the absence of national policy, just as it does with most other issues such as crime.  But the Supreme Court foreclosed this possibility in United States v. Arizona (2012). By a 6-3 vote, the Justices struck down Arizona’s law authorizing the arrest and detention of aliens in the state illegally because the federal government holds exclusive authority over immigration and preempted Arizona’s efforts to increase enforcement of federal immigration law.

To avoid Arizona, Texas makes a remarkable, unprecedented claim: that the vast influx of aliens at the border amounts to an invasion.  Article IV of the Constitution guarantees to states that the United States "shall protect each of them against Invasion."  In a January 24, 2024 statement, Governor Abbott accused Biden of breaking "the compact between the United States and the States."  

Abbott declares that failure to enforce immigration law "has triggered" his state’s right of self-defense.  Article I, Section 10 declares that states, without the consent of Congress, cannot "engage in War, unless actually invaded, or in such imminent danger as will not admit of delay."  Abbott claims that the flow of migrants across the border amounts to an "invasion" and that Texas’s "constitutional authority to defend and protect itself . . . is the supreme law of the land and supersedes any federal statutes to the contrary."  He apparently has ordered Texas soldiers to refuse to cooperate with federal officers.

Gov. Abbott may believe that the unrestricted movement of millions across the border, with drug cartels mixed in, seems like an invasion. But he presents no evidence from the time of the founding.  

It seems obvious that the founders would have defined an invasion as a hostile entry by an armed force onto the territory of the United States.  An invasion would require an enemy, ideally a sovereign state, but also possibly including Indian tribes and pirates. 

 Peaceful mass movement, even by 3 million a year, cannot alone constitute an invasion that justifies the use of military force.  Article I, Section 10 addresses situations when foreign nations attacked states with no time for the federal government to come to the rescue – hence the clause’s requirement of an invasion or "imminent danger as will not admit of delay."  

The border crisis is not imminent. Latin American migration has been a persistent problem for decades.  The danger is not the creation of an imminent exogeneous event; it has arisen from the failure of Congresses and presidents to reach agreement on an answer.

Congress could help head off a collision that both Texas and the Biden administration seem to want. A Congress divided by a Democratic Senate and a Republican House is unlikely to provide the consent under Article I, Section 10, that would allow Texas to use its military.  But the House of Representatives could make its own findings of fact that failures at the border have risen to the level of an "imminent danger" that would justify a state’s exercise of self-defense.  Such a set of findings might bolster Texas’s case in the courts as well as its political case to the public.  Rep. Jodey Arrington, R.-Texas, has introduced H.Res 50, for example, to do exactly that.  Without such congressional support, Texas is likely to fail.

None of this denies the human tragedy at the border. But the Constitution, as interpreted by the Supreme Court, forbids states from interfering with the federal government’s monopoly over our territorial sovereignty. States organize political opposition to Washington, D.C., sue in the courts, and seek to overturn Arizona v. United States. But Texas must use the proper political and legal remedies, not its military, to change national policy. Otherwise, it becomes a great threat to the constitutional order than the one it wants to resolve.