I am not an alarmist by nature. From my time as a prosecutor investigating the Watergate scandal, I have never doubted that justice would prevail or that democracy would survive. I never doubted that our union would last — until now.
Texas Gov. Greg Abbott’s actions at the southern border and his reaction to the Supreme Court’s decision in favor of the federal government make me fear for the continued existence of the United States of America. So does his signing of an expansive new law that gives the state's law enforcement powers over immigration that rightly belong to the federal government, not to Texas or any other state. In fact, should the Supreme Court rule against the Biden administration‘s challenge to that law, that would have consequences for every federal policy, not just immigration policy.
On its own Abbott’s statement is enough to make me fear our future as a federal republic.
It has long been accepted that the federal government controls immigration, national security, international relations and our borders. Despite the clarity of federal and state roles, in July last year, Abbott placed a 1000-foot-long string of buoys, separated by serrated saw blades and supporting a submerged mesh net, in the middle of the Rio Grande near Eagle Pass, Texas. Not only did this unconstitutional move spark protests from the Mexican government and migrant advocates, but also at least two migrants were found dead in the buoy barriers. In addition, among other incidents, a pregnant migrant was rescued but miscarried while stuck in the wire. That makes it inhumane, as well as unconstitutional.
Yet, while the courts forced Abbott to remove that dangerous obstacle to migrants and transportation from the Rio Grande, the Texas National Guard continued to install razor wire at the edge of the state’s land border. When federal agents cut that wire last fall, Texas sued the U.S. for damage to state property. Last week, the Supreme Court ruled against Abbott and affirmed the Department of Homeland Security’s right to remove the wire and to have access to the border to carry out the department’s duties. Two days later, Abbott issued a statement threatening to stonewall, much as then-President Richard Nixon did when he was subpoenaed for White House tape recordings that he didn’t want my team of Watergate prosecutors to have.
And, to make matters worse, Rep. Chip Roy, R-Texas, advised Abbott to ignore the justices and “tell the court to go to hell.” Other Republican lawmakers joined in with similar sentiments. Dozens of governors from red states, many with no international borders with Mexico, signed a statement supporting Abbott. A compact between any of those states and Texas without congressional approval would directly violate Article I of the Constitution.
But even without Roy or the support of a single other Republican governor, Abbott’s statement on its own is enough to make me fear our future as a federal republic. It includes misstatements of law and numerous factual errors, and its words sound like a call for a 21st century civil war. The opening sentence alone — “The federal government has broken the compact between the United States and the States” — would not be out of place among the declarations of secession issued nearly 165 years ago.
Abbott defends his actions by citing “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.’ He goes on to claim “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.”
In addition to his wrong-headed legal assertions, Abbott’s factual claims are equally erroneous.
But neither article supports his argument. Article I does not give a state a right to self-defense; it does the opposite by setting forth what states cannot do without congressional approval “unless actually invaded, or in such imminent Danger as will not admit of delay.” Similarly, Section 4 of Article IV only says “the United States … shall protect each [State] against Invasion.” The definition of invasion as used in those articles does not include an influx of unarmed migrants (or even drug trafficking) to justify Texas’ conduct here.
In addition to his wrong-headed legal assertions, Abbott’s factual claims are equally erroneous. He claims that “President Biden has refused to enforce those laws and has even violated them. The result is that he has smashed records for illegal immigration.” That is false. Biden has expelled a larger share of migrants than Trump did. And Congress, not the president, has the power to solve and fund the border solution. But Republicans, directed by Trump, are blocking the passage of a border deal to make it a political issue for the election.
If Abbott’s statement, with the support of 25 Republican states, is not to become a prelude to secession, what can Congress and the president do?
The president might have to mobilize the state’s National Guard on the federal government’s behalf, as President Dwight Eisenhower did in 1957 to integrate Little Rock high schools. President John F. Kennedy did the same in 1962 to allow students, including my law school classmate James Meredith, to enter the University of Mississippi over state opposition.
Or, if the statement this week by Texas Lt. Gov. Dan Patrick is implemented, the administration could seek to hold Texas officials in contempt. Patrick said Monday that the state will continue to build razor wire on the U.S.-Mexico border, despite the Supreme Court order. “We are putting up wire ... everywhere we can,” he told Fox News. “We will continue. We will not stop. If they cut it, we will replace it.”
That would be direct defiance of the Supreme Court’s order, for which action would be justified. And, as citizens, we also can take action by lobbying for passage of the soon-to-be-completed bipartisan immigration bill.
Abbott had his chance to convince the Supreme Court that he was right, but he lost and he must obey that ruling. The high court has been the final arbiter of disputes like this for hundreds of years. When a unanimous court ordered Nixon to hand over the tapes that ended his presidency, he did so.
I hope that is not necessary for President Joe Biden to nationalize the state guard, but it may be all that stands in the way of the end of the United States of America as then-President Barack Obama said we were, and the establishment of the Red States and the Blue States.