The Border Standoff is Escalating Quickly

Gregg Abbott is now defying the U.S. Supreme Court, forcing a showdown.

Will Bunch’s latest column, “Eagle Pass is today’s Fort Sumter. Biden must federalize the Texas National Guard. made me roll my eyes. Even though I floated the same solution to the border standoff earlier this week, the notion that a governor defying a court order is equivalent to opening shots of a literal civil war is absurd. For that matter, not only would federalizing the state militias not have been an appropriate solution to that attack, it would have been impossible.

No, the more obvious parallel was state defiance of court orders to desegregate public schools and universities, which led Presidents Eisenhower and Kennedy to federalize the Arkansas and Alabama National Guards, respectively. I strongly suspect that, like Orville Faubus and George Wallace, Gregg Abbott is a grandstanding yahoo but will ultimately obey the law when forced to do so.

Alas, then there’s a certain former President for whom I can not say the same.

Vice (“Trump Calls on ‘All Willing States’ to Send National Guard Soldiers to Texas“):

Like pouring water on a grease fire, former President Donald Trump has weighed in on the escalating standoff between the federal government and Texas. 

In a multi-part social media post shared Thursday night, Trump called on “all willing states” to deploy their national guard forces to Texas “to prevent the entry of illegals, and to remove them back across the Border.” 

Texas Gov. Greg Abbott told Tucker Carlson on Friday, that so far, ten governors had sent National Guard or other law enforcement resources to assist on the border, and will be “disappointed” if others do not follow suit.

Oklahoma Gov. Kevin Stitt told Fox News on Friday that he also “absolutely” plans to send national guard soldiers to Texas. ““We’ve already started putting the numbers together,” said Stitt. 

(Less than 24 hours earlier, Stitt joined Newsmax host Carl Higbie for a casual chat about potential “force-on-force conflict” breaking out at the border.)

Stitt is one of 25 red state governors who have released statements expressing support for Abbott, who is continuing to defy the Supreme Court’s ruling earlier this week that found that the federal government, not states, have ultimate jurisdiction over border enforcement. 

The Court’s 5-4 ruling gave a green light to Border Control to cut down the miles of razor wire that Texas forces had erected without federal permission along the Rio Grande and around Shelby Park in Eagle Pass, which is an epicenter for unauthorized border crossings. 

[…]

Abbott has doubled down on border enforcement activity since the Supreme Court ruling. He published a strongly-worded letter on Wednesday that accused the Biden Administration of abdicating its constitutional responsibility to protect states from “invasion.” “The federal government has broken the compact between the United States and the states,” Abbott asserted. 

Abbott cited a dissenting opinion from the 2012 Supreme Court case Arizona v. United States that argued that states have a constitutional authority to protect themselves if the federal government fails to.

Cori Alonso-Yoder, an associate professor from George Washington University Law School’s Fundamentals of Lawyering Program, told VICE News that she believes Abbott’s statement falls “more into the realm of political theater than actual supported legal theory.” 

While we’re not quite in 1860 territory here, this is just dangerous. A constitutional republic depends on a respect for the rule of law. To the extent there’s room for interpretation on where state and federal authority ends, it’s perfectly normal for one side or the other to test that limit. But it’s crucial that, once the legal process ends—in this case, with a clear Supreme Court ruling—that the parties abide by the outcome. That Abbott remains in defiance and that Trump and Stitt are strongly implying that said defiance should escalate to armed conflict is beyond alarming.

FILED UNDER: US Constitution, US Politics, , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Mister Bluster says:

    What’s this?

    I, _______________________, do solemnly swear (or affirm), that I will faithfully execute the duties of the office of ___________________ of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.

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  2. Mikey says:

    @Mister Bluster:

    What’s this?

    What’s printed on Abbott’s toilet paper.

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  3. Paine says:

    Watching Biden do eff all about this sort of provocation is really sapping me of my support for Biden and the rest of the Democratic party establishment. He’s going to let state officials tell federal agents where they can and can’t do their jobs? I’m expecting him to form a committee or file another lawsuit…

    He’s the president of the United States; he should act like it.

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  4. becca says:

    Trump is trying to thwart any attempt to pass legislation regarding border security because he wants to use it as a campaign issue and not allow a “win” for Biden. There are several GOP senators that are none too pleased with the yam who would be king drawing attention to this craven kind of politicking. Going to take more than a little steam out of the Republican CRISIS AT THE BORDER! rhetoric, innit.

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  5. Scott says:

    Well, the CBP now has authority to do what it needs to do along the border. It should do so and put the physical burden of denying them on the Texas National Guard. Let a single Guardsman manhandle a federal border patrol official and see what happens.

    The downside is that I’m not sure the CBP will do so since they are more sympathetic to Gov Abbott and the Republicans.

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  6. Erik says:

    @Paine: what does it mean to “act like the president of the United States” in this case?

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  7. JKB says:

    Certainly not Ft Sumter or one of the many earlier armories taken control of before the media event at Sumter as there is no federal property involved, no occupation of federal land.

    The vacating of the injunction imposes no duty on Texas. It simply permits the federal agents to cut and move the fencing. Texas can reinstall when the feds leave. Of course, it all just fumbling till the oral arguments in the pending case, I believe, on Feb 8th.

    And there is this, Biden can order as long as his orders are lawful. After all, Biden’s not a dictator, is he? But the CBP rank and file are prepared to defy unlawful orders.

    As for federalizing the national guard, well, the Constitution permits

    “to execute the Laws of the Union, suppress Insurrections and repel Invasion.” (Article I, Section 8, Clause 15)

    So immediately, the question would be who is executing the Laws of the Union and who is not faithfully executing the laws of the Union in regards to illegal entry into the US. And is the millions crossing the border illegally an invasion in the broad definitions we are using such as made Jan 6 an insurrection in the Democrat mind? All excellent questions for an election year.

    The AK and AL National Guard federalizings were to execute the Laws of the Union, not the whims of a president who refuses to faithfully protect the border.

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  8. MarkedMan says:

    After we defeated the racist German and Japanese regimes, we executed the most egregious war criminals we could catch and to this day we continue to pursue those that got away, so no clemency for war criminals. We set up a real democratic government and kept enough troops there for long enough that they became real allies. If we had done that with the traitor states we wouldn’t be having these problems now.

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  9. gVOR10 says:

    Jamelle Bouie addressed the larger context of Dobbs in his newsletter. I think that’s not paywalled, but I’ll quote fairly extensively.

    I have written about how abortion bans implicate a broad set of rights tied to our personal and bodily autonomy, including the right to travel between states. And I have analogized this dynamic to the legal and political conflicts over slavery, which were about not just labor but also the right of free citizens to enjoy the privileges and immunities of U.S. citizenship, wherever in the country they happen to live.

    One thing to recognize about the scope of states’ power from the founding to the Civil War is that it was broader and more expansive than we tend to recognize under modern conceptions of constitutional law. States, as most Americans understood them at the time, were governments of general jurisdiction with far-reaching police powers that gave them almost total discretion to regulate internal affairs. The federal government, by contrast, was a limited government of enumerated powers — a government that could take only such action as allowed by the Constitution.

    “Laws concerning paupers and vagrants,” she (historian Kare Masur) continues, were “all ‘police’ laws, designed to ensure public peace and protect a community’s coffers. In the slave states, people frequently described as police laws measures designed to prevent slave uprisings and otherwise safeguard the slaveholding order.”

    The Civil War and the constitutional amendments that followed brought a fundamental transformation of state and federal power. The states were now subordinate to the federal government in a way that wasn’t true before the war. And state police powers were now bounded by the rights established in the 13th, 14th and 15th Amendments. One way to understand the 20th-century expansion of national rights is that those constituted further restrictions on the police powers of the states. The constitutional right to an abortion, for instance, put real limits on the ability of states to regulate activity within their borders.

    Seen in this light, the conservative judicial attack on reproductive rights and voting rights and other breakthroughs of the 1960s and ’70s is about not just those rights but also freeing states to take a heavier hand in regulating their internal affairs.

    This is also what Abbott is trying to do with the border. The Civil War and the subsequent amendments were about fundamental questions of who is a citizen and the nature of federalism. These people are pushing for states rights and effective, if not actual, secession. The current iteration is about political ambition and mostly made up culture issues. Sad.

    I’ve commented on my frustration with NYT. Bouie is sufficient cause to maintain my subscription. I’ll be curios what my beloved /s “governor” DeUseless will do about the call to send National Guardsmen. He won’t want to help a rival, Abbott, politically, but, lacking an actual border himself, he’d hate miss an opportunity to grandstand about immigration.

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  10. DK says:

    @JKB:

    the whims of a president who refuses to faithfully protect the border.

    But enough about Trump, who, like previous Republican presidents, failed to secure the border or pass a border bill. Because Republicans don’t really care about fixing immigration law. They want to campaign on pretending they care, and their rich donors want cheap labor.

    So of course, rapist Trump and his MAGA extremists now want Republicans to sink their own bipartisan border compromise with Biden and Democrats. Why? Because, again, Trump doesn’t want to fix immigration. The far right wants more chaos at the border, so they can campaign on pretending they care.

    That they are selling out Ukraine and our European motherlands to Putin’s genocidal warmongering is an added bonus to Traitor Trump’s neofascist right. And MAGA nuts are also threatening to send US troops into Mexico.

    They ain’t slick. This is already backfiring on Donald Open Borders Trump and his beta male bootlickers in Congress. Trump Republicans are a national security threat: dangerous, treasonous, and unfit for office.

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  11. a country lawyer says:

    I was embarrassed to discover Abbott is a graduate of Vanderbilt, my law school. It appears he skipped the classes on Con Law.

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  12. Michael Cain says:

    @gVOR10:

    These people are pushing for states rights and effective, if not actual, secession.

    No matter what they say right now, they won’t be serious about secession until they believe that they can’t win their policy fights within the Union. At this moment, they still believe they can win.

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  13. Just nutha ignint cracker says:

    @Mister Bluster: Something that’s not binding because people can’t be held to pledges made in the name of someone that doesn’t exist?

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  14. OzarkHillbilly says:

    @Paine: I know exactly what I would like to do in this situation. Thank Dawg I’m not president.

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  15. Just nutha ignint cracker says:

    @OzarkHillbilly: I know what I would do, too. But that’s simply another of those “why we don’t want cracker or Luddite holding office” things. 🙁

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  16. Tony W says:

    @JKB: Give me a break.

    You people don’t give a shit about immigration. It’s easy to tell because you won’t do the simplest thing to solve it – imprisoning those who run businesses that hire illegal immigrants.

    For example, Donald Trump.

    It’s just a red-team vs. blue-team thing for you, and you gotta break a few eggs to make an omelet.

    These are human lives we’re talking about here. Dehumanizing the “other” is straight from the playbook though, and after all these years, I honestly don’t expect better from you. Just understand your mumbo-jumbo is not persuading anybody here to join the brownshirts with you.

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  17. Tony W says:

    @DK:

    Pretending they care

    Yep. They learned when their dog caught the Roe v Wade car that the chaos is far more beneficial to them than winning on policy.

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  18. Gustopher says:

    I’m of two minds on this — Biden needs to respond, but Abbott (and Trump) want to drag him into an escalation for their own reasons. It’s similar to the situation Israel was put into after the October 7th attack.

    Less deadly, but the same dynamics.

    The reasonable response here is probably to get a court to rule that Abbot personally is in contempt of court, and needs to pay fines for every day he is not in compliance or whatever, and let the process drag on in some slow, boring way that doesn’t give Abbott and Trump the headlines they crave.

    Alternately, invite Abbott to the White House (would he resist the opportunity to grandstand on a larger stage? I think not) and then just push his wheelchair into a pond. I think they will have to dig a pond first. Release a video of it with funny music.

    Focus on Abbott struggling to get out while Biden calmly eats an ice cream cone. This would be the Dark Brandon option.

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  19. Tony W says:

    @a country lawyer: Think of it this way: Somebody had to graduate at the bottom of the class

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  20. Barry says:

    @Mister Bluster: Optional for Republicans?

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  21. Barry says:

    @becca: “There are several GOP senators that are none too pleased with the yam who would be king drawing attention to this craven kind of politicking. ”

    None too pleased, but then again, on their knees and submitting.

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  22. reid says:

    @Gustopher: Heh. I was thinking the Benny Hill music while zipping around the lawn in fast speed video and ending with a splash, but that seems out of character with the Dark Brandon mood. Maybe one of our Hollywood guys here can speak up.

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  23. Slugger says:

    I think that most of this is red team-blue team stuff especially for the governors of non adjacent states. However, the percentage of Hispanics in Texas has passed the percentage of Anglos. I predict that this trend will continue. How long till we see a Spanish speaking governor in Texas?

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  24. Mister Bluster says:

    Here is a link about former Texas governor Bush. Hope it works.

    https://www.cbsnews.com/news/mr-bushs-spanish-fluency/

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  25. Ken_L says:

    that Trump and Stitt are strongly implying that said defiance should escalate to armed conflict is beyond alarming.

    Surely it’s a natural development following the failure of the 2020 coup attempt? It’s quite bizarre the way most pundits write about the November election as if Trump Republicans will abide by all the usual norms and laws of US political campaigning. Peter Baker wrote an asinine column last week explaining that the election is a contest between two visions of America! Which I suppose is a change from pretending it’s about “policies”.

    Trump was willing to break the law and his oath of office to overturn the 2020 election. The stakes for him and his family this time around are much higher – it’s not an exaggeration to say that defeat could well see him spend the rest of his life in prison, while his business empire collapses into bankruptcy. At 78 years of age he has little to lose by doing whatever he thinks it will take to win back the White House – including any violence that helps. For reasons that I still don’t fully understand, most Republican elected officials are either eager to help, or unwilling to offer any criticism.

    It may well be alarming, but it certainly shouldn’t be surprising.

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  26. Liberal Capitalist says:

    Why are MAGA so opposed to Trump’s Open Border Policy?

    “I’ll fight it all the way. A lot of the senators are trying to say, respectfully, they’re blaming it on me. I say, that’s okay. Please blame it on me. Please.”

    source: https://www.washingtonpost.com/politics/2024/01/27/trump-border-biden/

    .

    Question: Why does it seems that MAGAs rush toward places that gives them a photo op?

    We will see them crowing on Xwitter, instagram, facebook and truth social.

    Following the arrests for a variety of charges, the procecuting atty’s will be able to use evicence from Xwitter, instagram, facebook and truth social.

    Rinse. Repeat.

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