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In defense of Texas

Gov. Abbott isn’t “defying” the Supreme Court as he seeks to protect his state’s border

A guardsman walks over rail cars along the Texas-Mexico border on Jan. 3 in Eagle Pass, Texas. Associated Press/Photo by Eric Gay

In defense of Texas
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Not since the Zimmerman Telegram of 1917 has this nation seriously contemplated a physical invasion of the continental United States. Two massive oceans on our coasts have insulated our homeland, alongside rock-solid allies in Canada and Mexico. Our geographic boundary is a key pillar of America’s success through history. Yet now we face an invasion in another sense, not from armies of tanks and troops, but of illegal immigrants crossing an open Southern border.

The choice of the word “invasion” is intentional—Texas Gov. Greg Abbott has invoked the U.S. Constitution, which uses the word “invasion” several times. Gov. Abbott, in November 2022, wrote to President Joe Biden that the wave of illegal immigrants crossing his border prompted him to cite Article 1, Section 10 of the Constitution: “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.”

This clause pairs with a separate section of the Constitution, Article 4, which promises: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion….” The pair of clauses work in tandem. The federal government is responsible for protecting the states against invasion, such that states cannot keep standing armies or navies. But if the federal government fails in its duty to protect a state from invasion, then states can do what it takes to safeguard their citizens.

Of course, when the Founding Fathers who wrote the Constitution thought about invasion, they primarily contemplated a hostile army coming from a foreign nation—the British in Canada, perhaps, or the Spanish from the south. That much is evident from James Madison’s Federalist Paper No. 43. Whether 5-plus million illegal immigrants crossing over from Mexico since President Biden took office counts as an “invasion” will be a question for courts eventually.

Neither the Supreme Court nor any other court has issued an order for Gov. Abbott to stop doing anything.

But for now, the attacks on Gov. Abbott ring hollow in the wake of the U.S. Supreme Court’s non-decision on his efforts to lay razor wire. Gov. Abbott had used Texas National Guard soldiers to lay razor wire in such a way as to close off access to a park in Eagle Pass which included a boat launch into the Rio Grande River. The Border Patrol uses that launch to maintain its patrols in the river, and so cut the razor wire. That became entangled in a court case, which led to a Supreme Court appeal, and the court declined to intervene and stop the Border Patrol’s action.

The Supreme Court did not issue an opinion or even hear oral argument on the matter. It simply issued a short order on an emergency application from the federal government (what liberals used to deride as “the shadow docket,” before it became useful to them). Such decisions are judged on different standards from merits cases, with a presumption in favor of the federal government.

And Gov. Abbott is not “defying” the Supreme Court by continuing to insist on defending his border, even as news media bandy about that loaded term. Neither the Supreme Court nor any other court has issued an order for him to stop doing anything. He has complete freedom of action to continue with his policy of laying razor wire, deploying National Guard troops, and sending state police, as long as the Border Patrol can also go about its important job in its narrow zone of authority at the border itself.

Ultimately, one cannot help but sympathize with Gov. Abbott. Whether or not this is an invasion as the term was contemplated in 1787, it certainly feels like an invasion as hundreds of thousands of people flood across your border into your state, with an instant legal right to your schools, your hospitals, your social services. The federal government’s abdication of any serious policy to restrain illegal immigration places states in an impossible situation. Until we see change in the White House, what other choice does Texas have?

Daniel R. Suhr

Daniel R. Suhr is an attorney who fights for freedom in courts across America. He has worked as a senior adviser for Wisconsin Gov. Scott Walker, as a law clerk for Judge Diane Sykes of the U.S. Court of Appeals for the 7th Circuit, and at the national headquarters of the Federalist Society. He is a member of Christ Church Mequon. He is an Eagle Scout, and he loves spending time with his wife Anna and their two sons, Will and Graham, at their home near Milwaukee.

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