What’s the Matter with Texas?
Secession cosplay is getting real.
Down in Eagle Pass, Texas, is a 47-acre public park which sits on the Rio Grande and the U.S.-Mexico border. It’s called Shelby Park. And recently the state of Texas decided that it was going to take control of the section of border running through Shelby Park.
The state of Texas directed the Texas National Guard and state troopers from both Texas and Florida (lol) to harden the border in Shelby Park. But also to take control of access to the park, which is now surrounded by fencing and razor wire.
To keep out federal officials.
When members of the U.S. Border Patrol went to Shelby Park to do their jobs and see what was going on, they were denied entrance. (You can read the Texas Tribune’s big scene-setter here.)
This is kind of a big deal. Governor Greg Abbott has invoked Texas’s right to defend itself from an “invasion” (his word) and said his state’s sovereignty allows him to ignore federal law, by force if necessary.
The Biden administration has tried to take down the temperature. I suspect you have not seen President Biden tweeting in ALL CAPS about Abbott—or even talking much publicly about the situation. Instead, the administration has worked through the legal process, filing a lawsuit seeking to establish the authority of federal officials to cut through the razor wire erected by Texas so that it can tend to the border.
On Monday, the Supreme Court ruled in the federal government’s favor.
In response, the Texas attorney general, Ken Paxton, responded that the Supreme Court’s order “allows Biden to continue his illegal effort to aid the foreign invasion of America.” Which is a perfectly normal statement for an officer of the court to make, I guess?
It’s not clear what Texas Republicans think they are doing. Are they trying to trigger the libs? Or hurt Biden? Or help Trump? Whatever the case, what they are actually doing is putting in motion the most serious conflict between federal and state power since the integration standoff at Little Rock in 1954.
And Texas Republicans seem to think that such a constitutional crisis would be a good thing. Chip Roy says that the Texas National Guard should simply ignore the Supreme Court’s lawful order. Governor Abbott seems inclined to agree. On Thursday he issued a statement insisting that Texas has a “Constitutional right” to defend itself. Here’s the relevant bit:
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.
Abbott has so far been coy about whether or not he will order the Texas National Guard to defy the U.S. Supreme Court, but 25 other Republican governors took it upon themselves to issue a statement of “solidarity” with Abbott.1 Their statement is likewise coy about how far this solidarity extends. The Republican governors clearly state that Joe Biden Is Bad and that Texas has a right to “enforce its borders.” But it’s unclear if the statement means to say either that (1) The SCOTUS order was wrong and Texas should have the right to enforce state law over federal law or that (2) Texas should defy the SCOTUS order.
This strategic ambiguity is dangerous and irresponsible.
On the merits, this isn’t a close case.
Here’s the section of the Constitution (Article 1, Section 10, Clause 3) Abbott is referring to in his justification: “[N]o state shall, without the consent of Congress, keep troops in time of peace unless actually invaded.”
Abbott says that he has declared an invasion. This is idiocy. It’s the con law version of Michael Scott’s “I declare bankruptcy!”
But the craven Republican governors are going along with it and pretending that it’s a serious argument. And in doing so, they are flirting with an armed showdown and daring Biden to nationalize the Texas National Guard (or risk ceding the primacy of federal law). This posturing is unforgivably irresponsible.
Abbott is engaged in cosplay secession and these Republican governors are standing around the periphery trying to fool people into thinking that they might want to play, too.
Ultimately, this situation probably gets resolved through legal channels, which would be excellent. But if we get to that happy outcome, it will only be because President Biden was a grownup who followed the law and stayed calm while a bunch of arsonists were playing with matches at a gas station.2
And if it isn’t resolved through legal channels?
Donald Trump isn’t the only force trying to push America into constitutional crisis.