A feud over the nation’s border crisis has become a test of whether a state can defy the federal government to protect itself
Immigrants near Juarez, Mexico, try to cross into the US last month through concertina wire strung by Texas National Guard troops. © Christian Torres/Anadolu via Getty Images
An escalating feud between US President Joe Biden and Texas Governor Greg Abbott over the nation’s border crisis has emerged as a major test of where federal authority ends and when a state can defend its own interests – not unlike the impasse that triggered the American Civil War.
At issue is Abbott’s deployment of National Guard soldiers and state troopers to stop a stream of illegal aliens flooding into Texas, in defiance of federal jurisdiction over border enforcement. The state troops seized control of a park on the Texas-Mexico boundary earlier this month, blocking US Border Patrol officers from accessing the site, and stringing concertina wire to seal off a popular crossing point for illegal immigrants. Biden’s administration won a US Supreme Court ruling on Monday, upholding the right of federal authorities to dismantle the border barriers put up by the state.
Abbott set down his battle lines on Wednesday, announcing that Texas will continue to defy Biden on border security – regardless of the court ruling – because the federal government has shirked its constitutional duty to defend the states. In lieu of Washington fulfilling its obligations, the governor claimed, the state’s right to self-defense “supersedes” all federal laws.
‘Foreign invasion’
Abbott’s legal argument hinges on his declaration that Texas is under “invasion.” The Biden administration’s failure to defend the nation’s states from that invasion triggered a constitutional clause under which Texas can exercise its right to self-defense, the Republican governor said. “That authority is the supreme law of the land and supersedes any federal statutes to the contrary.”
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As a result, the Texas National Guard and state troopers will continue working to secure the border, Abbott said. The Texas Military Department, which includes the state’s National Guard units, issued a statement on Tuesday pledging to “hold the line” to prevent illegal border crossings. “We remain resolute in our actions to secure our border, preserve the rule of law and protect the sovereignty of our state.”
A new law signed by Abbott in December allows Texas police to arrest and jail immigrants who cross into the state illegally. It also enables state judges to issue deportation orders.
Defenders of Biden’s border policies have argued that the constitutional clause Abbott invoked applies to invasions by foreign armies, not a large influx of immigrants. The administration has insisted that only the federal government has authority over border enforcement, including the detention and deportation of illegal aliens, and the White House has blamed former President Donald Trump for leaving behind a broken immigration system.
US voters are apparently more inclined to believe Abbott’s assessment of the situation. A Rasmussen Reports poll released earlier this month showed that 65% of voters believe the border issue is not just a crisis, but an “invasion.” A majority of respondents in every demographic and political category, including 55% of Democrats, agreed that their country is being invaded.
The numbers
Border Patrol agents encountered more than 300,000 illegal immigrants crossing into the US in December, an all-time high for a single month. Illegal border crossings have surged since Biden took office in January 2021 and began dismantling Trump’s policies. Nearly 2.48 million illegal aliens were encountered at the border in the government’s latest fiscal year, which ended on September 30, compared with just 458,000 during Trump’s last full fiscal year in office. Those figures don’t include millions of so-called “gotaways” who crossed into the country without being confronted by federal officers.
Biden’s administration released nearly 1.4 million illegal aliens into the US in the last fiscal year, in many cases letting them stay in the country while awaiting court hearings for dubious asylum claims, according to the Center for Immigration Studies in Washington. The backlog of cases is so large that some asylum seekers may be waiting in the country for decades before they are given a court date, and many simply choose not to show up for their hearing when the time finally arrives.
Republican leaders have also argued that Biden’s “open-borders” policies are jeopardizing national security. More than 172 illegal immigrants encountered by Border Patrol officers in the last fiscal year had been flagged on the nation’s terrorist watch list. That compared with only three such encounters during Trump’s last year in office.
Critics have blamed the border crisis for rises in drug smuggling and human trafficking, too. More than 112,000 Americans died from drug overdoses between May 2022 and May 2023, mostly from fentanyl and other synthetic opioids. “Every state is a border state under the Biden administration’s policies, and hardworking Americans are paying with their lives,” US Senator Katie Body Britt, an Alabama Republican, said earlier this month.
Biden’s conundrum
The standoff with Texas puts Biden in an awkward position politically at a time when he is campaigning for re-election later this year and most Americans are displeased with his performance on border enforcement. He essentially faces a choice of backing down, which would anger his pro-immigration constituents, or federalizing the Texas National Guard and tearing down the state border barriers, which would make it easier for illegal aliens to break US law.
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”Abbott has Biden over a barrel here,” US podcast host Matt Walsh said on Wednesday. “What is Biden going to do, send the military in to forcibly open the border, in an election year? I’m sure he’d like to, and would if he could get away with it, but it would turn the vast majority of the country against him.”
No decisions have been made on whether to federalize the Texas National Guard, White House National Security Council spokesman John Kirby told reporters on Thursday. “We talked about this the other day,” he said. “I don’t have any decisions to speak to for the president. I don’t have anything on that.”
Former congressman Beto O’Rourke, a Texas Democrat, likened the feud to when Arkansas Governor Orval Faubus deployed National Guard troops to prevent nine black students from entering Little Rock’s Central High School following a 1957 Supreme Court order on racial desegregation. US President Dwight Eisenhower ordered the US Army’s 101st Airborne Division into Little Rock to ensure that black students were allowed to attend the previously all-white school, as ordered by the court.
”Biden must follow this example of bold, decisive leadership to end this crisis before it gets worse,” said O’Rourke, who lost the 2022 gubernatorial election to Abbott.
Historical perspective
The Arkansas desegregation battle is perhaps the best and most recent historic precedent for a state trying to defy Washington’s authority in a matter of federal jurisdiction. Previous cases included an effort by Kentucky to nullify a 1798 federal law that enabled the government to deport aliens deemed a threat to national security. South Carolina passed a state law in 1832 trying to nullify federal tariffs that were disproportionately burdensome to southern states.
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The states lost those battles. In the South Carolina case, US President Andrew Jackson threatened to send in federal troops if the state refused to comply with federal law. “Disunion by armed force is treason,” he wrote. “Are you really ready to incur its guilt?” A compromise was reached a year later, when the federal government tweaked its tariffs and the state repealed its legislation.
The southern states were willing to incur the consequences of armed rebellion in late 1860 and early 1861, when they seceded from the Union over “irreconcilable differences,” especially slavery. The resulting Civil War left about 750,000 Americans dead.
What happens next
Abbott has essentially put the ball in Biden’s court to either assert federal authority by force, drop the issue or seek a compromise. The president is currently trying to negotiate a deal with Republican lawmakers to beef up border security in exchange for approving over $60 billion in new funding for Ukraine’s conflict with Russia.
Presumably, a political compromise with Republicans could help cool tensions between Washington and Texas. Abbott has tried to ramp up pressure on Biden and other Democrats over the border crisis by busing illegal aliens to Democrat-controlled cities. Those efforts have brought the immigration issue home in places such as New York City and Chicago. New York Mayor Eric Adams has warned that the migrant influx “will destroy” his city, and he has criticized Biden for failing to alleviate the crisis.
Republican lawmakers, such as Representatives Chip Roy of Texas and Clay Higgins of Louisiana, have applauded Abbott’s defiance of the federal government. Higgins went so far as to say, “The feds are staging a civil war, and Texas should stand its ground.” Arkansas Governor Sarah Huckabee Sanders said, “If President Biden won’t defend us, states will have to defend themselves. Arkansas stands with Texas.”
As confrontational as those comments may be, Republican politicians have stopped short of calling for secession. Social media users have been less restrained. The hashtag #Texit has trended on X (formerly Twitter) since the Supreme Court ruled against the state on Monday.
