Governor Abbott Needs to Keep the Pedal to the Metal
Texas Governor Greg Abbott chose the Old Hickory Option. In the midst of perhaps the worst border crisis in U.S. history, American Reformer’s Josh Abbotoy urged Abbott to follow the example of Andrew Jackson’s (likely apocryphal) dismissal of Chief Justice John Marshall’s opinion in Worcester v. Georgia (1832). In a prescient piece earlier this month, he insisted that Abbott issue “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.” On the afternoon of January 24, the Texas governor did just that.
In a public statement, Abbott responded to a Supreme Court order that allowed U.S. Border Patrol agents to remove razor wire fencing installed by Texas officials. He argued that since the federal government violated Article IV, Section 4 of the Constitution, in which they are sworn to “protect each [State] against invasion,” he would invoke Article I, Section 10, Clause 3, “which reserves to this State the right of self-defense.” Previously, Abbott has also cited Article 4, Section 7 of the Texas Constitution, which grants the governor the power “to call forth the militia to execute the laws of the State, to suppress insurrections, and to repel invasions.”
Since, under the Constitution, the states are sovereigns as is the federal government, and because the Supreme Court is not a magisterium that sets down the only valid interpretation of the Constitution that binds the other branches, states have an obligation to defend themselves when the federal government declines to carry out its constitutional duties.
Contrary to the fulminations of the commentariat class, “invasion” is the proper terminology—both from a political and constitutional standpoint—to describe what’s been happening at the U.S.-Mexico border since Biden took office.
In his statement, Abbott noted that “more than 6 million illegal immigrants have crossed our southern border in just 3 years,” which is “more than the population of 33 different States in this country.” Steven Camarota of the Center for Immigration Studies has estimated that since January 2021, “2.7 million inadmissible aliens have been released into the country.” Moreover, 1.5 million illegals were allowed to enter the U.S. without being stopped. And that’s not all: “Visa overstays also seem to have hit a record in FY 2022.” Overall, the net illegal immigrant population in the U.S. has grown by 2.6 million since Biden was sworn in.
Though courts have ruled that the specific meaning of Article IV’s Invasion Clause is nonjusticiable (e.g., see Padavan v. United States), historical evidence can help shed light on its meaning. Writing as Publius in Federalist 43, James Madison makes it abundantly clear that not only do states have the right to defend themselves “against foreign hostility”—a right that’s inherent as a sovereign per Emer de Vattel—but they can even counter “ambitious or vindictive enterprizes of its more powerful” neighboring states. The implication is that states clearly possess an original power of self-defense from threats arising from both inside and outside of the country.
Constitutional scholar Robert G. Natelson writes in The Heritage Guide to the Constitution that the framers specifically designed the Invasion Clause “to prevent a sectional president from refusing to defend certain parts of the nation from foreign attack.” What Natelson highlights undoubtedly describes the situation today, as the regime chooses its own interests above those of the nation as a whole. Biden’s term in office can be properly described as a rolling constitutional crisis that is designed to reward his friends and harm his enemies. For the regime, the rule of law is but a tool to be weaponized against “MAGA Republicans”: tens of millions of irredeemables, deplorables, and un-American insurrectionists who…want to preserve the country for their children and grandchildren.
As clear majorities of Americans continue to want immigration enforcement, the vast archipelago of regime apparatchiks who man our hollowed-out public institutions have colluded against them. Per Abbotoy, it is no overstatement to say that they want “to end the American nation’s existence as a republic.” The federal government has not only abdicated its constitutional responsibility to enforce the border—it is actively aiding and abetting the destruction of the U.S. in toto.
Madison hoped in Federalist 46 that in light of such a threat,
ambitious encroachments of the federal government on the authority of the State governments would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other.
As Madison outlined in Federalist 43, the states have a duty to interpose between the people and the federal government in situations that deeply affect “the vital principles of their political system.”
As of this writing, 25 state governors and 26 state attorneys general have pledged their support for Texas. Other influential voices such as Erik Prince have issued their approval. Ohio U.S. Senator J.D. Vance has introduced the “State Border Security Act,” which would authorize states within “25 miles of the southwest border” to put up temporary fencing “to deter illegal immigration.” Even the independent presidential candidate Robert F. Kennedy, Jr. has stated that as president he would “secure the border and destroy the business model of the drug cartels,” concluding in a very Trumpian manner, “A country without borders is not a country at all.”
The most meaningful question now is whether Abbot’s missive will eventually be seen as the statement read ‘round the world. Will it be the opening move in a serious and persistent effort to reestablish some semblance of federalism and, ultimately, republican government? Or will it simply be more unfulfilling political theater from Republicans?
As the Biden administration continues to treat Texas like a hostile foreign nation, Abbott’s fortitude will be tested. In what’s likely the first of a series of sanctions against the state, the administration temporarily halted pending decisions of liquefied natural gas (LNG) exports under the guise of a climate change emergency. When the U.S. became the world’s highest LNG exporter in 2022, Texas led that effort. As the “Right-wing Twitter pugilist” David Reaboi is fond of saying, “Democrats don’t have foreign enemies; they have foreigners who remind them of domestic enemies.”
In the days and weeks ahead, Abbott should heed the counsel of Wade Miller, the Executive Director of Citizens for Renewing America. Miller urges Abbott to go from a defensive posture to an offensive one: he must “repel the invasion by removing those attempting to cross, between ports of entry, back into Mexico.” Even more, Miller calls Texas AG Ken Paxton to “defend Abbott’s Article I powers in court.” A recent amicus brief filed by the Center for Renewing America in the U.S. Fifth Circuit Court of Appeals lays this out. Citing relevant case law and copious documents from the founding era, it clearly demonstrates that Abbott possesses sole authority under the Constitution “to make the determination that Texas is being invaded, and to decide how best to repel such invasion.”
“Abbott owes it to Texans to pick this standoff not just because the optics will make him look good,” Miller maintains, “but because winning the standoff will make the lives of Texans measurably better.” Conservatives cannot cling to a hollow victory, confusing winning a skirmish with winning the war. The common good requires that they work to safeguard the res publica, without which civil society is all but a fantasy.
There are some signs that Abbott may be serious about seeing this through. He told Tucker Carlson that he is prepared for a conflict with federal authorities and that ten other states have already sent National Guard units to the Texas border. Going forward, it is imperative that Texans—and Americans more generally—continue to push Abbott’s administration to get control of the border and reassert Texas’s sovereignty.
One quick word of caution for those invoking the Reformers’ doctrine of the lesser magistrates. First laid out in the Magdeburg Confession of 1550, it teaches that when a tyrannical ruler has wantonly violated God’s law, magistrates under him have a duty to resist him for the sake of the civil order.
Under the Constitution, as originally established, however, state governors do not receive their authority from the federal government. Instead, they receive it directly from the Constitution, which was created by the people of the separate states in their highest sovereign political capacity under God.
In Federalist 51, James Madison described America as a “compound republic.” The “power surrendered by the people” is “divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.” Madison noted in Federalist 39 that the federal government’s power “extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.” This of course has been largely obliterated in our age of incorporation and federal preemption.
Even founders like Alexander Hamilton who had a more energetic understanding of the national government’s scope and power nevertheless saw that states should not be at the mercy of the national government. He wrote in Federalist 26 that state legislatures should be “not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government.” And like Madison, he too counseled that should anything “improper” occur, the states would “sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent.”
Florida Gov. DeSantis has pointed out that if the Constitution was understood in 1787 to prevent the states from protecting themselves against an invasion, it never would have been ratified. The states are not simply administrative subunits of the federal government, to which their possession of police powers over health, safety, and morals attests.
Only with sustained acts of noncompliance can Red States reassert their political will, self-determination, and dignity (understood as a cultivated capacity for action). If our representatives resign themselves merely to reacting, however, those who wield power in ways detrimental to the common good will triumph.
In the weeks ahead, Governor Abbott will need to weather the name-calling that will continue to be shouted from the regime’s megaphone. When a Time/National Geographic-esque photograph of crying children with mountains of razor wire in the background are published, he will need to stand firm. Likewise when he’s called an insurrectionist or Orval Faubus, Jr., or racist.
Whatever Abbott’s particular reasons for standing up for his state and his people, whether normal political considerations or something more high-minded, he should be supported by all Americans who desire to reestablish political rule under the law for the good of all.
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