by Ryan McMaken, Mises Institute:
In what can only be a surprising move, Texas Governor Greg Abbott has openly defied the White House and invoked Article 1 section 10 of the US constitution as a reason to ignore the Biden Administration’s demand that the State government cease erecting a border barrier along the Texas-Mexico border.
For months, the federal government has ratcheted up threats against the state government and condemned Texas for erecting razor-wire barriers and other impediments to migration. The White House has sued to force the demolition of these barriers in further efforts to increase foreign migration into Texas. Texas took legal action of its own against the federal order. However, on Monday, the US Supreme Court ruled that the Federal government could proceed with its plans to cut the razor-wire barrier.
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Texas officials, however, have refused to grant federal agents access to the border. This extends a Texas policy that has essentially ejected federal personnel from a 2.5 mile stretch of the Rio Grande in Eagle Pass which has been used extensively by coyotes, cartels, and migrants as an entry point into the US.
The situation continues to escalate, and now Washington Democrats are demanding that Biden “take control” of the National Guard and turn it against the state government.
The situation is shocking because Republican-controlled state and local governments rarely show any willingness to oppose federal usurpations of local authority. For decades, the standard operating procedure of Republicans has been to instantly surrender the second anyone in Washington utters the phrase “supremacy clause” or the Supreme Court makes a ruling. Democrats, on the other hand, routinely scoff at federal supremacy, such as with “sanctuary cities.”
This is a rare instance in which a Republican-controlled state government has not immediately bent the knee in the name of national unity and “law and order.”
So, what exactly does the Texas governor’s declaration say? Overall, it makes the case that the Biden administration has been ignoring federal immigration laws and illegally withdrawing border-control operations from the Texas-Mexico border. Abbott concludes:
Under President Biden’s lawless border policies, more than 6 million illegal immigrants have crossed our southern border in just 3 years. That is more than the population of 33 different States in this country. This illegal refusal to protect the States has inflicted unprecedented harm on the People all across the United States.
If that were all, we’d just chalk this up to a document that amounts to little more than a letter to the editor. But then Abbott says that the US Constitution provides a remedy for the situation:
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.
The final paragraph is where it gets interesting. Abbott writes:
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.
Abbott is essentially saying that federal supremacy in this case has been rendered null and void by a federal refusal to enforce federal law.
Can he get away with it?
For clarity, let’s look at Article 1, section 10. It reads:
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.
The key phrase here is “unless actually invaded.” Whether or not the current flood of migrants across the border constitutes “invasion,” as stated here, is perhaps debatable. However, what is self-evident here is that it is up to the state government to determine for itself whether or not the state is being invaded. After all, the whole point of the section is to grant certain powers to states outside the authority of the federal government. If the federal government also gets to determine for itself whether or not the state is being invaded, then the section is pointless.
So, an honest reading of this text ought to preclude the Biden administration or US Supreme Court coming back and saying “you’re not being invaded, now do what we say.”
