Texas Gov. Greg Abbott’s defiant statement on Wednesday rejecting the federal government’s authority to enforce immigration law at the U.S.-Mexico border ratcheted up the already tense stand-off between the state and the Biden administration — and signaled how fully the GOP has become the party of the Southern conservatives it was founded to fight.
Abbott’s declaration that that the Biden administration had “broken the compact between the United States and the States” by failing to “fulfill the duties” of protecting Texas from an “invasion” is an eerie echo of the political thought that gave rise to nullification and secession in the 19th century and resistance to desegregation in the 20th.
Prior to the Civil War, the prevailing view among Southern elites was that the Constitution of the United States of America was merely a compact between the states. Under this theory, states could decide which national laws to follow or not. And, in extreme circumstances, states could exit that compact and secede, if they decided the national government or other states had violated it.
While this framework was endorsed in some fashion by the likes of Thomas Jefferson, the political thinker who most influenced Southern secessionists and, later, segregationists was John C. Calhoun.
Calhoun — who held various offices, including South Carolina senator, secretary of state, secretary of war and vice president — embraced a virulent strand of states-rights legal thinking in defense of slavery when he put forward his theory of nullification in 1828. Since the nation was simply a compact created between the states, this thinking went, states had the ultimate authority to reject federal law they deemed unconstitutional. In 1832, Calhoun’s South Carolina declared that it would not follow two national tariff laws, and, if forced to do so, would secede.
Calhoun’s ideas formed the theory behind the sectional crisis of the 1850s over the admission of new states as either free or slave. That compromise ultimately led to the South’s secession, following President Abraham Lincoln’s election in 1860.
One hundred years later, segregationists — then, mostly conservative Southern Democrats — yet again invoked compact theory and nullification in their campaign of “massive resistance” to the Supreme Court’s desegregation order in Brown v. Board of Education.
But with Abbot’s action in Texas, the Republican Party has taken up the old Southern standard of nullification. In refusing to allow Customs and Border Patrol to exercise its authority to enforce federal immigration law at Eagle Pass, Abbott embraced compact theory and nullification. Nearly the entire Republican Party has joined him, with 25 of 26 GOP governors sided with Abbott in a letter, declaring, “Texas has every legal justification to protect the sovereignty of our states and our nation.” There has been little to no protest from other elements of the party.
Meanwhile, former President Donald Trump, the de facto leader of the GOP and frontrunner for its presidential nomination, called on “all willing states to deploy their guards to Texas to prevent the entry of illegals and to remove them back across the border.”
The standoff began after Texas constructed razor wire fencing along the Mexico border, including the placement of razor wire-covered buoys in the Rio Grande River. In order to aid and detain migrants who appeared to be in physical danger after crossing the border, Border Patrol agents had been cutting the razor wire to reach them.
The state of Texas sued in federal court to block Border Patrol from cutting the razor wire fencing. A district court judge ruled against Texas, but the 5th Circuit Court of Appeals, stacked with hard-right conservatives, issued a preliminary injunction blocking the district court ruling while it heard the case. This meant the Border Patrol could not cut the razor wire to retrieve the migrants, preventing agents from enforcing federal law.
The situation escalated on Jan. 11, when Abbott ordered the Texas National Guard to take control of a park in Eagle Pass, on the state’s border with Mexico. The state guards were ordered to erect concertina wire to prevent Border Patrol officers from accessing the park and aiding and detaining any migrants who might be in physical peril. Subsequently, three migrants — a woman and two children — drowned to death near Eagle Pass.
The Biden administration appealed the 5th Circuit’s preliminary injunction to the Supreme Court. In an unwritten ruling, five justices overruled the appeals court’s injunction, allowing Border Patrol to again cut the wire. This decision also directly covered cover Border Patrol’s access at the park in Eagle Pass.
Following the high court’s decision, Abbott issued a statement claiming that Texas would still not allow Border Patrol into the park. While not explicitly declaring that he would violate the ruling, it was here that Abbott made clear his inheritance of the Southern legacy of nullification and secession.
Texas’ ability to “defend and protect itself” from migrants is “the supreme law of the land and supersedes any federal statutes to the contrary,” Abbott said.
This is effectively a contemporary twist on Calhoun’s nullification. The problem is that states do not have the right to supersede federal statutory authority. This question has been settled three times — in 1832, 1865 and the mid-20th century — each time in favor of the federal government.
Abbott’s constitutional reading is similarly weak. His argument centers on a provision of the Constitution that prevents states from taking actions reserved for the federal government — like engaging in independent foreign policy, entering into compacts with other states or printing their own currency — except in certain situations. One of those exceptions is that states may not “engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”
This is why Abbott declared migrant crossings to be an “invasion.” But immigration does not amount to an invasion, and putting up concertina wire is not engaging in war.
This provision was meant to provide states with the ability to “engage in War” if they were invaded by, say, the British or French from Canada, the French from the Louisiana territory or the Spanish from Florida, at a time when the country didn’t have a standing army and mobilization and transportation were limited. James Madison, one of the key architects of the Constitution, said as much in 1800.
In debates over the ability of the government to expel non-citizens from countries the U.S. was not at war with, Madison rebutted the use of the very constitutional provision Abbott cites as an authority enabling such expulsion.
“It is said, that the right of removing aliens is an incident to the power of war, vested in Congress by the constitution,” Madison wrote. “This is a former argument in a new shape only; and is answered by repeating, that the removal of alien enemies is an incident to the power of war; that the removal of alien friends, is not an incident to the power of war.”
The U.S. is not at war with Mexico. Nor is at war with any of the Central or South American states where the vast majority of migrants originate.
Furthermore, federal law is supreme over state law on immigration. Since the late 19th century, courts have held that the Commerce Clause of the Constitution provides the federal government with the “sovereign” authority to regulate immigration. Whether one thinks this granting of authority is correct or not can be debated, but it remains standing precedent. In addition, the Constitution’s Supremacy Clause prohibits states from interfering or superseding areas of the law where the federal government has constitutional authority.
This is all pretty clear. The federal government is supreme over immigration law. The states cannot simply ignore federal immigration law or federal authority to enforce immigration law because they disagree.
While Abbott’s over-the-top rhetoric mirrors that of nullifiers, he has so far not actually violated the Supreme Court’s decision. We remain far from the constitutional crises that preceded the Civil War. The court’s ruling simply allowed the Border Patrol to cut the razor wire while imposing no requirements on Texas. That could change as the court case moves forward and Texas is asked to change its actions.
One possible resolution to the standoff could involve Biden federalizing the Texas National Guard, overriding their orders from Abbott and making them open the park at Eagle Pass to Border Patrol. This was the solution President Dwight Eisenhower chose in 1957, when Arkansas Gov. Orval Faubus sought to nullify the Supreme Court desegregation order and use the state’s national guard to block Black students from accessing Little Rock schools.
There are, of course, other solutions. In 1832, while President Andrew Jackson threatened to go to war with South Carolina, his administration and others engaged in negotiations to prevent the state’s secession. The parties ultimately prevented the state from leaving the union by agreeing to amend the tariff laws South Carolina had declared it would disregard.
Abbott’s use of nullification rhetoric — and the Republican Party’s broader embrace of it — may turn out to be all bluster when the courts ultimately rule on the issues at the heart of the standoff. But his statement provides yet another example of how far Republicans have strayed from their origins.
CORRECTION: This article previously stated that the Constitution’s Guarantee Clause gives the federal government authority to regulate immigration. It is actually the Commerce Clause that provides this.