The State of the Union: Borders and the Constitution
Texas's control of the southern border in defiance of Biden continues as the immigration crises facing the United States leads to a legal showdown between the state of Texas & the federal government.
Almost immediately following the lawsuits launched by the state of Texas and the Biden administration initiating their lawsuit over Texas's enforcement of illegal immigrants, an unprecedented action was taken by Texas. On January 22, the Supreme Court (SCOTUS) ruled in a 5 to 4 decision that federal agents can cut razor wire that state authorities installed along the border. In response to this ruling, Texas refused to comply by installing more razor wire and denying federal authorities access to the border (Eagle Pass is the most prominent area). Texas authorities, including the Texas National Guard, continued to operate along the border by setting yet more razor wire, conducting patrols, and turning migrants away. The Biden administration gave Texas a 24-hour deadline to comply with the SCOTUS ruling, but Texas ignored the administration’s demands. Governor Abbott's course of action reignites the debate over state sovereignty and federal authority.
THE SUPREME COURT
The justices had varying opinions on this issue in the SCOTUS case over the Texas border. Most notably, Chief Justice John Roberts and Justice Amy Coney Barrett ruled to allow Border Patrol to cut the razor wire when necessary to perform their duties. Their arguments centered around the supremacy of federal law over state law and the need to maintain the federal government's authority over immigration policy. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh argued that the razor wire should not be removed. They deemed it to be a necessary measure to protect the safety of Texas citizens and to address the crises. Their arguments focused on the states’ right to defend their citizens and the need to allow states to act when the federal government fails to address and resolve a major crisis.
TEXAS: OPERATION LONE STAR
In response to the SCOTUS ruling, Governor Abbott posted an official statement on 𝕏 citing its actions as: “Texas’s constitutional right to self-defense.” In the official statement, the governor stated that “the federal government has broken the compact between the United States and the States.”
He explains that the federal government must enforce laws that protect the States. However, Abbott claims that the federal government (specifically President Biden) has failed to resolve this issue. The governor lists three primary grievances over President Biden's actions regarding the crises; Abbott claims that Biden has violated his oath by not prosecuting illegal immigrants and bringing lawsuits against Texas for taking action, instructing federal agents to ignore federal statutes that mandate detention, and the “waste of taxpayer dollars to tear open Texas’s border security infrastructure.”
Governor Abbott argues in his response that the inaction and failure of the Biden administration have triggered Article 1, Section 10, clause 3 of the Constitution, which guarantees a state's right to self-defense. With Abbott officially declaring that the current migrant crisis is an invasion, this grants Texas a legal framework to continue what has been dubbed Operation Lone Star on the border, seemingly in defiance of the Biden administration.
One major challenge for the Lone Star State is what happens if the president decides to federalize the Texas National Guard, a move that has become common during the years of the Global War on Terror. On his news show “Tucker Carlson Uncensored,” Carlson asked Governor Abbott what his response would be to this possible move. Abbott said, “Well, first, I'll be shocked. That would be a boneheaded move on his part, a total disaster. We are prepared to ensure that we can continue building these barriers if that unlikely event does occur." The governor would likely rely on the Texas State Guard, an entity entirely separate from the Texas National Guard. The Texas State Guard is solely under the authority of the Governor of Texas and, unlike the National Guard, cannot be activated by the president.
The Biden administration has argued that the border authority lies with the federal government and that Texas is overstepping its authority. On January 26th, the president's official response was that he acknowledged that the border was “broken.” Biden said he instructed his team to negotiate with a bipartisan group of senators to draft a bill to solve the border crisis. The president further claimed that he needs this piece of legislation to grant him the authority to “shut down the border when it becomes overwhelmed,” and to provide funding for more agents to process migrants seeking asylum. It is also important to note that in August 2023, President Biden sought to ban or severely limit asylum-seeking to stem the flow of migration. The courts have blocked this measure, and after going through the Court of Appeals, the policy was allowed to proceed. However, with the current policy of enforcement, federal agents are not authorized to stop migrants from crossing; they still must be detained for processing, essentially brought into the country, which critics have claimed does nothing to stop the flow of illegal immigration and deter future illegal crossings.
LEGALITY AND LEGISLATION: WHO HAS THE POWER?
The Biden administration has criticized Republicans for not supporting legislation for the border, however, in response to this, Senator Ted Cruz referred to the bill in question as “a kamikaze plane in a box canyon with no exits headed for a train wreck.” He argues that the legislation would not stop the crises, but instead exacerbate the issue by only capping the number of migrants allowed to enter the U.S. at 5000 people per day.
Speaker of the House Mike Johnson echoed the same sentiment about the bill, posting on 𝕏:
“According to reports, the Senate's pending proposal would allow as many as 150,000 illegal crossings each month (1.8 million per year) before any new ‘shutdown’ authority could be used. At that point, America will have already been surrendered.”
Funding for Ukraine is also being used as a bargaining chip by Democrats over funding for the border making the odds of a bipartisan deal that will pass unlikely. President Biden has maintained that he needs Congress to pass legislation to allow him to act; however, what is the validity of the president's claim? The following legislation seems to conflict with what the president has said:
Title 8 U.S. Code, section 1182, states that a president has the authority to bar or waive the entry of aliens and to suspend the entry of aliens if said entry is deemed detrimental to the United States.
Title 8 U.S. Code, section 1158 (a)(2)(A) states that the Department of Homeland Security (DHS) may, by regulation, establish added limitations and conditions under which an alien can be eligible for asylum.
Title 8 U.S. Code, section 1158 (b)(2)(C) states that aliens who firmly settle in another country other than their own before arriving in the US are not eligible for asylum.
The National Emergencies Act of 1976 allows the president to declare a national emergency, granting additional powers to the office. In the context of border control, a national emergency declaration could provide the president with certain authorities to address specific issues related to border security.
The Constitution also grants the president authority over the border that does not require legislation from Congress in the following Articles:
Article II, Section 3 - Take Care Clause states that the president "shall take Care that the Laws be faithfully executed." This grants the president the responsibility to enforce and implement the laws of the United States, including those related to immigration and border security.
Article II, Section 2 - Commander in Chief Clause designates the president as the Commander in Chief of the armed forces. While this clause primarily relates to military matters, it can be used for border security, especially in emergencies or when military forces are necessary to protect the border.
Speaker of the House Mike Johnson also weighed in on the president’s claim of needing legislation to take action on the border, stating the following on his 𝕏 account:
“President Biden falsely claimed yesterday he needs Congress to pass a new law to allow him to close the southern border, but he knows that is untrue.
As I explained to him in a letter late last year, and have specifically reiterated to him on multiple occasions since, he can and must take executive action immediately to reverse the catastrophe he has created.
The Immigration and Nationality Act coupled with recent Supreme Court precedent give him ‘ample authority’ to ‘suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
As my letter stated, President Biden can begin to secure the border by ending catch-and-release, ceasing exploitation of parole authority, reinstating the Remain in Mexico program, expanding the use of expedited removal authority, and renewing construction of the border wall. The President must start by using the broad legal authority he already possesses to reclaim our nation's sovereignty and end the mass release of illegal aliens into our country.”
The president is granted the power to secure the border and change policy without legislation, especially during an emergency, including outright stopping immigration altogether and closing ports of entry until the emergency ends. However, Congress can legally challenge such action or produce new regulations on border security that the president must abide by. Nevertheless, in the absence of enacted legislation or court-ordered restrictions, the president retains the authority to take action without the need for legislative approval.
THE RESPONSE: AN ALLIANCE OF STATES
The reaction to this legal struggle has caused a stir in the nation. Twenty-five states have publicly announced their support for Texas; in a joint statement, the governors of these states posted the following: "President Biden and his Administration have left Americans and our country completely vulnerable to unprecedented illegal immigration pouring across the Southern border." Governor DeSantis stated in a video on his social media account on V that the states can act in defense of themselves or any encroachment of federal authority over state sovereignty. The House Speaker Mike Johnson posted on 𝕏, “I stand with Governor Abbott. The House will do everything in its power to back him up.” He also eluded in his post that the next step is to hold DHS Secretary Mayorkas accountable. State governors did not stop at rhetoric as Arkansas, Florida, Iowa, Idaho, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Virginia, West Virginia, and Wyoming all deployed personnel and resources to Texas to assist in securing the border. Former President Donald Trump also weighed in first by asking more governors to send support to Texas and then at a campaign rally stating that, “If Joe Biden truly wanted to secure the border, he doesn’t need a bill.” A federal Border Patrol Official also stated the following on the ongoing legal battle: “Bottom line: Border Patrol has no plans to remove infrastructure (c-wire) placed by Texas along the border. Our posture remains the same. If we need to access an area for emergency response, we will do so. When that happens, we will coordinate with Texas DPS & TMD.”
The political stakes of this conflict are significant, as immigration and border enforcement are important issues for voters on both sides of the political aisle. The Biden administration, as well as Democrat governors and mayors, have faced criticism for the increase in migrants flowing into states and cities, and the situation could impact elections at all levels of government. With the support of other states, this move by Texas could also set a precedent over the issue of state sovereignty and federal authority in the coming years. It has created a reevaluation in the minds of many Americans as we struggle with extreme political divisions. How much authority should the federal government have over the states? Should we remain a singular union under centralized control or a union of states with a certain level of autonomy? The outcome of this event could shape the future of the relationship between the federal government and the states.
Wrong Speak Publishing is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.