Will Texas Save Our Republic?
Last week, the United States Department of Justice announced that it will be suing Texas to stop enforcement of Texas Senate Bill 4, a law intended to allow Texas law enforcement to help enforce federal immigration law. You can read the complaint here.
If I were advising Governor Abbott, here’s what I would tell him: You are uniquely situated to be a hero by acting to stop the long-standing immigration crisis. The State and much of the nation are standing ready to support you in this effort. Here is what you must do: pose a credible threat of noncompliance with any federal order, whether administrative or judicial, that would stop you from doing what is necessary to protect Texas, and more than that, the American nation. You could call this the Old Hickory Option: “John Marshall has made his decision, now let him enforce it!”
Allow me to explain.
Insults to State Sovereignty
We should start by taking a trip down memory lane, to a similar case resolved late in President Obama’s first term (i.e., before he undertook those powers to rewrite immigration law via executive order, an action which he himself had previously described as imperial in nature). My concern here is the political calculus rather than the legal merits, but the arguments from Arizona are a necessary predicate to have on the table.
The Biden Department of Justice’s legal case against Texas will, in many respects, seek what they claim to be a straightforward application of Arizona vs. United States, 567 U.S. 387 (2012). In that case, Arizona (like Texas) had adopted a suite of laws that gave Arizona law enforcement the ability to investigate and detain individuals suspected to be illegally present, or illegally working, in the United States. The Court – with Justice Kennedy writing for the majority – struck down the Arizona laws in their entirety, reasoning that the Constitution gives Congress such broad authority over the regulation of immigration that States are preempted from taking any action with respect to immigration (an argument based on what legal scholars call “field preemption” – a scenario where Congress has passed such comprehensive regulation pursuant to constitutional powers that States may not step into that subject matter whatsoever, even if the particular laws in question do not actually conflict with federal law).
Writing a partial dissent but concurring in the holding, Justice Scalia argued that the States, as dual sovereigns in our constitutional system, had always retained “the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress.” In technical terms, then, Scalia favored the application of “conflict preemption” to the Arizona laws – a much narrower inquiry that would only overthrow State law upon a showing that a State law specifically conflicted with a federal law regarding a matter in which the federal government properly should be supreme. As persuasive evidence, Scalia marshaled a host of evidence from our nation’s founding and early history, touching on the close relationship between immigration (the right to exclude) and sovereignty. Citing Emer de Vattel, the Federalist Papers, precedent, and the constitution itself, Scalia argued that: (i) the States are sovereigns in the American system, (ii) the right to exclude is inherent to sovereignty (and widely held to be so during the time of the adoption of the Constitution), (iii) the States had the right to exclude prior to the adoption of the Constitution and did not cede that right in the Constitution, (iv) that States frequently exercised that right following the Constitution’s adoption and (v) that the Constitution itself evidences the right of States to defend their own territory (e.g., the invasion clause, which allows States engaging in war in the case of invasion: “[n]o State shall, without the Consent of Congress, . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” Art. I, §10, cl. 3). In conclusion, Scalia mused that for much of our nation’s history, “there was some doubt about the power of the Federal Government to control immigration, but no doubt about the power of the States to do so.”
My concern here is not really the legal merits of the case. Texas’s fine Solicitor General’s office surely will make legal arguments about as well as can be reasonably expected. Texas – which obviously created a vehicle for confronting Arizona when it passed SB4 – will no doubt glean from Scalia’s wonderful dissent in crafting its answer to the DOJ, and in all the subsequent appeal briefs, as it should. The composition of the Supreme Court has shifted since 2012, and perhaps Texas has a shot at overturning that decision on the merits of the legal arguments alone.
But as the governor of a sovereign State, you cannot absolve yourself of your responsibility to protect the citizens of Texas by simply passing the file over to your lawyers and washing your hands. There are some political lessons that you should draw from Scalia’s dissent in Arizona.
First, consider what the American political tradition holds a State to be, and the necessary consequences thereof: States are sovereigns, vested with not just a right, but a duty, to protect their citizens. What does it mean for your sovereignty when you are told you cannot perform a core function of the sovereign, at a time of crisis when that function is desperately needed? How should we expect a sovereign to act when, to use Scalia’s own words, it is “deprive[d] … of what most would consider the defining characteristic of sovereignty?”
Second, consider how the current legal immigration regime ratchets in a way that favors lawlessness, and works against the safety of your citizens: Congress – by virtue of having legislated on immigration – has purportedly preempted you from doing a thing about it. No matter that the federal government makes a structured policy of not enforcing statutes (n.b., the administration uses so-called prosecutorial discretion and resource constraints as a rationale for not faithfully executing the law, but always has ample resources for suing States dealing with the fall-out from its negligence). Biden’s DOJ has no similar resources to contend against States that enact sanctuary policies – policies that much more squarely conflict with federal law. Thus we are forced to conclude that the federal government’s policy is to not faithfully execute the law, to stop States that attempt to stand in the gap, and to tolerate States that adopt policies that directly undermine federal statute (but accord with the federal government’s policy of negligence).
Immigration Crisis as Regime Crisis
The federal government’s ongoing, ever-worsening failure to provide a secure border amounts to a regime-level crisis, making the situation at issue in Arizona seem quaint by comparison. To be sure, this has been a slow boiling crisis – a perennial issue since the Reagan administration – and although elegant commentators occasionally rise up to yell “Stop!”, although thinktanks do very thankless and detailed work detailing the issue, although the citizens have expressed through repeated elections that they strongly prefer a secure border, nothing happens. An unholy alliance of corporate profiteers seeking cheap labor and an activist class dedicated to demographically reshaping America has been effective at ensuring that would-be border hawks at the federal level are stymied, or more often, pressured into turning-coat.
This 40-year crisis has now reached an intolerable fever pitch. Each passing month brings reports of still more record-breaking migrant caravans and recording-breaking border crossings. In 1986, a political firestorm arose after Reagan signed a non-partisan bill giving amnesty to 2.7 million illegal immigrants who entered over many years past. In 2023, the Department of Homeland Security reported new encounters of 3.2 million illegal immigrants in the prior twelve months alone. The Federation of Americans for Immigration Reform estimates that there were, all told, 16.8 million illegal immigrants present in the United States as of June 2023 – a figure soon to be left in the dust unless the United States materially changes its policy. Keep in mind that the topline illegal immigrant number excludes any children born to illegals while present in the United States, who receive citizenship automatically, regardless of their parent’s immigration status. Canada and the United States are the only first-world countries in the world to adhere to a policy of birthright citizenship. As a result of birthright citizenship, the policy of not securing the Southern Border has a compounding effect on coercive demographic change in the United States.
Moreover, the nature of immigration is shifting. Whereas in years past illegal crossings were overwhelmingly from Mexico and Central America, illegal immigrants now include a much broader array. In 2023 DHS reported encounters with over 50,000 Chinese nationals, over 57,000 Russian nationals, over 18,000 Turkish nationals and over 299,000 “Other” nationals – a blanket category inclusive of a wide array of African and Middle Eastern nations. A not-insignificant number of suspected spies and terrorists were encountered. Keep in mind that DHS data reports encounters (not all illegal entries), and its most recent estimate is that it apprehends 78% of illegal border-crossing attempts. As such it is almost certain that a significant number of terrorists and spies entered the United States unawares in 2023.
But more troubling than the exotic spy and terrorist threats are the cartel killings, drugs, sex trafficking – atrocities for people on both sides of the border – and all the more mundane criminality and resource constraints, of which Texas and the other border states bear the lion’s share. The most subtle cost of all is amongst the loyal, law-abiding citizenry who watch strangers make themselves at home here, in our home, even though we as a people have clearly and repeatedly expressed our wishes to the contrary through the democratic process.
Don’t let your eyes glaze over as you read these familiar horribles once again – the point isn’t to say things are very bad and someone should do something, but rather to assert what these issues truly augur: forced national euthanasia, and regime change. Surely, there is a point at which a border becomes so leaky that it becomes an absurd fiction to speak of the entity behind that border as a nation. And similarly, there is a point at which the composition of a citizenry becomes so malleable that one can no longer speak of that group of people as a republic.
The upstart regime – federal bureaucrats, establishment politicians, large corporate interests, civic society and the activist class – appears to have embraced the operative premise that the United States must be content to always remain a passive recipient of whomever, from wherever, may desire to gain entry to this nation. Such a premise is at times fallaciously rooted in supposed American ideals. You’d think the words on the Statue of Liberty, with no limiting principles, comprise our constitution. But of course, this fantasy of an undefined nation is entirely absent from our founding, our written constitution, and our history before the late 20th century, and indeed cannot be found in any functional nation.
This bizarre conceit of an undefined nation is best understood as suicide for the American nation. Its telos is to end the American nation as such, to end the American nation’s existence as a republic (a thing that is impossible without social trust and cohesion). How else can we make sense of a sovereign actively working against all attempts to enforce border security and “the right to exclude,” which so many, from Vattel to Scalia, agree is close to the very core of sovereignty? The changeling “American” polity that is emerging from this chaos will be something more like an empire: a federal government that sits over a factious citizenry that participates in “American” political life out of a bargain of convenience rather than symbiosis. States are thoroughly subjugated – vestigial organs – that merely operate as administrative functionaries for the empire. And erstwhile citizens of a constitutional republic are relegated to the status of imperial subjects; like customers, they are fungible with any other citizens of the world. If “we the people” are suboptimal for political purposes, we can be supplemented or replaced with more compliant subjects.
Thus, unfettered immigration is a lawless insurrection against the American nation in two political senses. It is regime change against the States, depriving them of the core function of sovereignty, and in another sense, it is regime change directed against the people of the American nation – by coercively changing their composition.
Acting like a Sovereign
It should be clear by now that at least by right you can oppose federal efforts (administrative, and yes, even judicial) to stop you from protecting Texas’s citizens. To say this is almost a tautology; of course a legitimate sovereign – if threatened with illegitimate deprivation of the core aspect of their sovereignty – can resist.
So, you can resist, but should you? It is painfully clear by now that more of the same will not cut it. You are uniquely positioned to be the man of history who is famous for ending this long national insanity, or at least, making a valiant attempt. What other governor has a comparable invasion at hand, a conservative reputation to uphold and a State populace ready to stand behind him? If you take the Old Hickory Option – successful or not – you will be a hero to the true American nation. On the other hand, if you acquiesce, your legacy will be little more than a footnote in a history of long, managed decline.
There is good reason to think that signaling a credible threat of non-compliance with any federal order that would stop you from protecting Texans will in fact help to secure a favorable outcome at the Supreme Court. Chief Justice Roberts is, if nothing else, impressively devoted to protecting the legitimacy of the Supreme Court, and ensuring that he never has a hand in causing a constitutional crisis. He assiduously avoids weighing in on contentious political questions unless absolutely necessary. There is a good chance that the 5th Circuit will side with Texas, and from there, declining to take up an appeal would be a relatively easy way for the Supreme Court to keep itself out of the brewing sovereignty contestation. You’ve seen how such aggressive methods have become quite common on the left, and often to great effect. Even now, the Biden administration is likely acting in contempt of a federal court order by removing border barriers in defiance of a court order.
Do not think that by hinting at the Old Hickory Option you would be personally complicit in a breakdown in the Constitutional order. Of course, the Nine Robed Ones are not infallible, and our founders were not so foolish to think so. Nor were our founders blind to the fact that our system – by purporting to divide sovereignty – would at times allow vigorous contestations from various participants in order. The possibility of such contestation can significantly interfere with the formation of tyranny, if the various political actors are willing to play their parts. Presidents and Governors have famously, on rare occasions during times of crisis or extreme Supreme Court overreach, shrugged and invited the Supreme Court to enforce its own rulings.
The Supreme Court knows all of this, and knows well that any political power that they wield derives from their perceived legitimacy as guardians of the Constitutional order. They will be loath to have a hand in causing a constitutional crisis, especially over the issue at hand here. And you have good reason to believe that you will be the beneficiary of overwhelming acclaim from the people of Texas, and indeed, many patriots across the nation, if you agree to step into this role that history demands of you.
You do not need to indicate your credible threat of noncompliance with bravado or excessive language. You can communicate it quietly, and firmly. You could alternatively merely hint at it. Even that would no doubt cause broad consternation. It will drive news cycles. It will cause chatter of a constitutional crisis, and that’s precisely what you need.
Moreover, the immigration is an emergency situation, isn’t it? It is an invasion. Act the way that a sovereign who is being invaded would act. Doing so will make you more credible when your lawyers go to the Supreme Court to convince them that Texas, as a sovereign, is allowed to enforce SB4. Because in that case, you will have been acting like a sovereign. Your urgent action and tone now will buttress your entirely true claims that Texas is being invaded. On the flip side, if you adopt an obsequious posture toward the Nine Robed Ones, they are likely to take the less politically painful path, and respect the administration’s claim to sovereignty, but not yours.
To be sure, there are risks. In a worst-case scenario, if you go through with a threat of non-compliance with a Supreme Court order, I suppose you could have the National Guard descending on Texas, or have the Department of Justice and the FBI pursuing you personally with criminal charges. But, imagine the political catastrophe it would be for the Biden administration to make war against Texas while claiming it has no resources to faithfully execute the border laws. If the Biden administration were to make such a fatal error, then too you would be a man of history. You would be the man who revealed the nature of the upstart regime, and the depths to which it will sink in furtherance of its objective to humiliate the States and replace the people. Thus, in a worst-case scenario, you would still be making a noble sacrifice.
Look at the costs with clear eyes, but understand: circumstances have aligned themselves in a way that offers you the opportunity to play a heroic role in American history as the singular man who had the courage to end this decades-long humiliation.
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