Normally I give the mainstream media an “F” when they report on court cases. But in Department of Homeland Security v. Texas, I must break from precedent and give them an “F minus.”
Due largely to faulty (mis)reporting, the public thinks the Supreme Court has just issued a landmark decision on border policies. It has not – at least, not yet.
Here’s where the case stands:
To deter the waves of illegal immigrants, Texas began placing sharp-edged razor wire in places along the Rio Grande where the border wall is not completed. The Biden administration’s Department of Homeland Security sued Texas, arguing that the federal government has exclusive control over the border; therefore, Texas’ actions violate the Constitution. The Biden administration further announced its intent to cut razor wire that Texas installed. The case is currently pending in the 5th U.S. Circuit Court of Appeals.
Texas sought, and the 5th Circuit granted, an injunction prohibiting the Biden administration from cutting razor wire until the case is finally resolved on its merits. But the Biden administration petitioned the Supreme Court to vacate the 5th Circuit injunction, which the Supreme Court did in a 5-4 vote on Jan. 22.
The decision was not a lengthy landmark. It consists of two sentences, the first saying the injunction is lifted, the second noting that Justices Thomas, Alito, Gorsuch, and Kavanaugh voted to leave the injunction in place. The justices gave no reasons for their decision, but an injunction is an extraordinary remedy granted only in exceptional circumstances.
So legally speaking, the action goes back to the 5th Circuit for resolution on the merits. Whatever the results, the case will almost certainly be appealed to the Supreme Court, and this recent two-sentence ruling gives no indication how the Court will ultimately decide the case.
Meanwhile, on January 10, “Texas authorities effectively blocked U.S. Border Patrol agents from a 2.5-mile area near Eagle Pass,” where many illegal crossings occur. Two days later, the Texas Military Department “seized and secured Shelby Park,” a 47-acre city park near Eagle Pass on the Rio Grande. Texas claims this was necessary to protect the people of Texas from an invasion.
Constitutionally, may Texas do this? The knee-jerk liberal response is that whenever federal and state power conflict, federal power is supreme.
But it’s not that simple. The 10th Amendment provides that “The powers not delegated to the United States [federal government] by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Article I, Sec. 8 lists the powers delegated to the federal government; control of the borders is not among them, although it does give Congress power to establish a “uniform Rule of Naturalization.” Article I, Sec. 10 lists the powers prohibited to the States; nothing about the border is mentioned. That suggests the States never ceded the power over their borders to the federal government, so the States have at least a concurrent power over border issues.
Texas has constitutional authority to engage in war when “actually invaded, or in such imminent Danger as will not admit of delay" (Art. I, Sec. 10), especially when the federal government abdicates its duty to protect the state from invasion or insurrection (Art IV, Sec. 4).
The Supreme Court’s order authorizes the U.S. Dept. of Homeland Security to cut razor wire. But it doesn’t prohibit Texas from installing razor wire. Texas Lt. Gov. Dan Patrick says if the federals cut the wire, Texas will simply replace it – and nothing in the order says Texas can’t do that.
The Department of Homeland Security has demanded full access to Shelby Park; Texas Attorney General Ken Paxton replied on Jan. 26 that Texas will not allow the federal government to turn Shelby Park into an “unofficial and unlawful port of entry.” He stated forcefully, “Your request is hereby denied,” pledging to continue “Texas’s efforts to protect its southern border against every effort by the Biden Administration to undermine the State’s constitutional right of self-defense.”
Texas Gov. Greg Abbott has called members of the National Guard to active duty, and the governors of at least two states, Florida and Oklahoma, have offered him the support of their Guard units. (Gov. Ivey, Thanks for saying "Texas, you can count on Alabama," but I hope you will be more specific.)
But Democrat Congressmen have called upon President Biden to federalize the Texas National Guard. Biden could do that under Article I Sec. 8, but Abbott might then turn to the Texas State Guard. About half the states have a state guard or state defense force, including every state in the South except Alabama, and under 32 U.S.C. 109, state guards are not subject to federalization. The 1,900-member Texas State Guard is probably the best in the nation.
Don’t mess with Texas! I believe the military defense of its people is an inherent power of any government, a power that transcends even the Constitution, a power that cannot be ceded or delegated to any other level of government. Thank God Texans are standing up to the federal leviathan; Alabamians should join them.
“Audemus jura nostra defendere!” If you don’t know what that means, look it up.
Colonel Eidsmoe pastors two rural Alabama churches, is the Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu), and serves as Senior Counsel for the Foundation for Moral Law (morallaw.org). He can be reached for speaking engagements at [email protected]. Those with constitutional concerns may contact the Foundation for Moral Law at (334) 262-1245.
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to [email protected].
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