Connecting state and local government leaders
Greg Abbott is using legal arguments similar to those used by supporters of the Confederacy to justify his confrontations at the border with federal authorities. Law professors warn that could be dangerous.
In an escalating crisis over migrants at the Texas border, Gov. Greg Abbott has turned to arguments used by secessionists in the run-up to the Civil War to justify his increasingly belligerent actions against federal authorities. And he has the majority of governors and state attorneys general backing him up.
The defiant posture by Abbott—a former judge and state attorney general—has alarmed legal experts who study the Constitution, both because it is on flimsy legal ground and because it could be used to justify violence.
There are two related claims that Abbott, a Republican, is making that are at the heart of the controversy.
The first is that the “federal government has broken the compact between the United States and the states.” The “compact theory”—the idea that the federal government derives its power from the states—was an argument used by secessionists like John Calhoun, the South Carolina politician considered to be the father of Southern nationalism and secession. That view fell out of favor after the Civil War, when the alternative idea that “we the people” created both states and the national government became widely accepted. President Abraham Lincoln famously articulated the idea, declaring the U.S. was a “government of the people, by the people, for the people.”
The second of Abbott’s controversial claims is that Texas—and the United States—is being “invaded.” That term is important because the Constitution provides that the federal government will protect states “against invasion.” Several prominent legal scholars say the term “invasion” refers to an effort to replace or undermine the existing government, usually through military force.
But Abbott said that Texas has been “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.” As a result, the governor said he had “declared an invasion under Article 1, Section 10, Clause 3 [of the U.S. Constitution] to invoke Texas’ constitutional authority to defend and protect itself.”
“That authority,” he claimed, “is the supreme law of the land and supersedes any federal law to the contrary.”
Abbott has relied on that interpretation to escalate tensions with the Biden administration over control of the U.S.-Mexican border. The governor has stationed National Guard troops in a park in the town of Eagle Pass, on the Rio Grande River, where they have installed razor wire to prevent migrants from crossing. The federal Border Patrol has tried to remove the barriers, in part to aid its rescue efforts for people who are drowning or need assistance in the river.
Texas officials went to court to block federal agents from removing the concertina wire, claiming it amounted to trespassing. Lower courts sided with Texas, but the U.S. Supreme Court issued an order last week that lets Border Patrol agents remove the wire. The justices did not, however, demand that Texas troops stop installing or repairing the wire once it was removed. That has led to an awkward standoff while the court cases continue.
Meanwhile, Abbott has rallied much of the Republican establishment across the country to his side.
Every Republican governor in the country other than Vermont’s Phil Scott signed a letter backing their Texas colleague, not just on the need for stronger border enforcement but on the defiant legal justification as well. “Because the Biden administration has abdicated its constitutional compact duties to the states,” they wrote last week, “Texas has every legal justification to protect the sovereignty of our states and our nation.”
On Monday, 26 Republican state attorneys general sent a similar letter to President Joe Biden. “Right now cartels, terror groups and other bad actors are taking advantage of the chaos by the border to orchestrate a mass influx of people. Gangs are using the flood of people to hide their ‘predator’ members as they enter the United States,” the GOP attorneys wrote.
“The federal government should be working to stop this crisis, but it is not. And the Constitution’s Guarantee Clause requires that the federal government do so. It must ‘protect each [State] against invasion.’ But it has abandoned its duty,” they added.
Several legal experts have panned Abbott’s rationale for his aggressive moves on the border.
Sanford Levinson, a professor of law and government at the University of Texas, says Abbott’s description of the border crisis as an “invasion” is “nonsensical from a lawyerly perspective, and it’s dangerous from a political perspective.”
“If Abbott’s letter had been an answer to a final exam question by a first-year law student, you would give it a ‘D’ or an ‘F.’ But he’s not,” Levinson said. Coming from a lawyer, he continued, the argument is “pernicious nonsense” and “frivolous.”
“Abbott isn’t writing to me,” added Mark Graber, a University of Maryland law and government professor who specializes in constitutional law. “Abbott isn’t writing to anyone with knowledge of American law and American history. Abbott is writing to his base. I’m not a political advisor. The letter may be successful in working for his base. But if Abbott is going to submit this for his Ph.D. in political philosophy, he’s going to be sent back to the third grade.”
Graber said that Abbott’s description of the U.S. government as a compact would mean that the federal government operates more like the United Nations than a unitary nation.
“What is very novel about this assertion of state sovereignty is that states sometimes declared they were sovereign over purely domestic matters … but even before the Constitution was ratified, states did not declare sovereignty over foreign policy. From 1776 to 1789, no state sent an ambassador to another government. No state declared it had a right to declare war on another government or another state. So if we’re talking about an invasion, we’re talking about a matter of foreign policy that was ceded to the national government even under the Articles of Confederation,” he explained.
And when it comes to domestic policy, the matter has been long settled, too, he added. Even though Thomas Jefferson and James Madison at one point both described the Constitution as an agreement among states, their Federalist foes disputed that argument. After the Civil War, the debate subsided. “Whatever merits the compact theory had,” Graber said, “compact theory ended when Robert E. Lee surrendered.”
The U.S. Supreme Court also ruled in 1869 that the Constitution does not allow states to secede.
The law professors also disputed the notion that there’s an “invasion” occurring at the country’s southern border.
Levinson said Abbott is deliberately misusing the word “invasion” to justify the buildup of National Guard troops at the Texas border, much as if a president would deploy troops to quell “domestic violence” based on reports of spousal abuse.
“It’s not a stretch to say that ‘invasion’ could refer to a non-state group, but it would have to be truly organized, armed and with the desire to either take over or weaken an existing government. You’re not a bank robber who was crossing the border to rob a bank and take the money back to Mexico. An invasion is where you want to take over the sheriff’s office to make it impossible for the sheriff to govern,” he said.
Graber, the Maryland professor, said an invasion involves a challenge to sovereign territory. “Whatever else that poor person from Guatemala is doing in Texas, they are not challenging the United States’ or Texas’ sovereignty,” he said.
Steve Vladeck, a University of Texas law professor, questioned the potential consequences of Abbott’s legal reasoning.
“Texas’s reading would effectively allow for the governors of the states under direct assault to assert strategic and tactical control over the response,” Vladeck wrote for Lawfare. “Suffice it to say, the parade of horribles that would result from Texas’s interpretation of Article I, § 10, Clause 3 is a long one—regardless of how one feels about current U.S. immigration policy. And that’s all the more reason for all of us to be cautious before we ignore the text, structure and history of the Constitution in our response.”
Indeed, Graber and Levinson said Abbott’s legal reasoning could open the door for states like Illinois or New York to erect barriers at their borders to prevent the entry of migrants on buses from Texas. It could empower the Democratic governors of other border states to tear down barriers or walls that the federal government erects along the border. “Why not?” Levinson asked.
Levinson, though, cautioned that the legal controversies could end up before the Supreme Court, where a new conservative majority has felt emboldened to overturn precedents that have stood for decades. The same could happen in this situation, he said.
A Growing Crisis
Texas has become the focal point in the U.S. for the largest movement of displaced people since World War II. Millions of people from Central America, South America and Africa have left their homes in recent years to flee collapsing economies, political instability and organized violence.
Abbott has tried to staunch the flow of people coming over Texas’ 1,200-mile border for years. He launched Operation Lone Star in 2021, bringing National Guard troops from Texas and other states to the border region. His administration has paid for bus and plane trips for recently arrived migrants from Texas to Democratic strongholds like Boston, Chicago and New York. At one point, Abbott even ordered Guard troops to lay barbed wire along the state’s border with New Mexico to block migrants from crossing there, too.
“The only thing that we’re not doing is we're not shooting people who come across the border, because of course, the Biden administration would charge us with murder,” Abbott said in a radio interview earlier this month.
The White House and immigrant rights groups condemned the comments, but the governor later said, “I was asked to point out where the line is drawn about what would be illegal, and I pointed out something that is obviously illegal.”
Texas, of course, is not the only state confronted with a growing number of migrants. Arizona Gov. Katie Hobbs, a Democrat, signed an executive order in December deploying her state’s National Guard to the border and asked Biden to reopen a port of entry there (which the administration did earlier this month).
“Yet again, the federal government is refusing to do its job to secure our border and keep our communities safe,” Hobbs said in a December statement. “With this executive order, I am taking action where the federal government won’t. But we can’t stand alone, Arizona needs resources and manpower to reopen the Lukeville crossing, manage the flow of migrants, and maintain a secure, orderly and humane border. Despite continued requests for assistance, the Biden administration has refused to deliver desperately needed resources to Arizona’s border.”
But Abbott has made Texas the political focus of the crisis, inviting Republican governors and members of Congress to visit the state and stoking tensions with the Biden administration.
South Dakota Gov. Kristi Noem has called a special session of the legislature to address border-related issues this week. The Republican governor has repeatedly backed Abbott in cable news interviews, telling viewers she would “drive him more razor wire from South Dakota if I have to.” She’s even suggested there “could be a violent situation” between federal agents and National Guard troops, before acknowledging it could end up as a court fight instead.
“Politically, [Abbott] is playing with fire,” Levinson warned. As someone who worries that polarization in the country could devolve into civil war, Levinson described a scenario involving the current situation where that could conceivably happen. “If hotheads from Texas, or from Oklahoma or other states, send people to Texas in order to help Texas defend itself against the illegitimate national government,” he said, “and shoot an American soldier who is trying to cut the barbed wire in the middle of the Rio Grande ….” Biden would then have to decide whether to retaliate, he said.
“That is the fire that I think Abbott is playing with,” Levinson said, “and it has precious little to do with the law.”
Daniel C. Vock is a senior reporter for Route Fifty based in Washington, D.C.