Biden and the Border

Are we approaching a Civil War?

So the war over the border between Texas and the Biden Administration is now in the “Sitzkrieg” stage.  Texas Gov. Greg Abbott has essentially declared war on illegal immigration.  He invoked Article I Section 10 of the United States Constitution, which forbids states from declaring war except when “actually invaded” (or in such imminent danger as to admit of no delay) and, by implication, allows them to declare war when that happens.  He also invoked the Guarantee Clause of Article IV, which requires the federal government to protect the states against invasion.

Abbott’s legal argument is that since he’s being invaded, he’s entitled to respond, and since the federal government is defaulting on its obligations it has no business – it’s basically estopped from – complaining.  There was a lot of huffing and puffing at the time, with members of Congress calling on President Biden to federalize the Texas National Guard and the like, but basically, nothing happened.  The Supreme Court vacated an injunction forbidding the Border Patrol from cutting the barbed wire that Texas had installed along the border, but – contrary to many media reports – didn’t rule that what Texas had done was illegal, or order Texas to stop policing the border.

Now not much is going on.  The big complaints about immigration are mostly coming from outside Texas, places like New York City where illegal immigrants beat police with impunity, being released without bail after being arrested.  (The usual endgame for this sort of thing in other societies has been death squads, organized either by police or by police-adjacent groups, taking out those whom the legal system cannot or will not control; we’ll see what happens in New York City.)

But next month Texas’s law allowing the state to apprehend and effectively deport illegals will go into effect, and that’s when the sitzkrieg is likely to end.  Following are my (very) preliminary thoughts.

To me what’s astonishing is how unpopular with everyone the immigration policies of the Administration – and a good chunk of the GOP – are.  Open borders are unpopular with blacks, whites, rural and urban voters, and, really, just a vast bipartisan majority.  But like “climate change,” another priority of the ruling class without matching popular support, the borders stay open.

Why?  Because our ruling class seeks, in Bertolt Brecht’s famous phrase, “to dissolve the populace and elect another.”  As Elon Musk tweeted:

Musk’s comments met with the usual outrage, but Democrats have pretty much touted this as the plan for years.  Indeed, it goes back to Ruy Teixeira’s “Emerging Democratic Majority” strategy, though it’s been accelerated in recent years.  (And Teixeira himself has retreated from that plan).  Sure, naturalization takes years – though they may speed that up, as it’s just a matter of statute – and there have also been some moves to allow non-citizens to vote anyway.  Think that’s unlikely?  Maybe, but how many things are happening these days that seemed impossibly unlikely a few years ago?  And it’s a long game; a bunch of Democratic voters in 5 or 6 years will suit them fine.

Anyway, the (almost certainly deliberately) transformational character of this illegal immigration makes the invasion argument much stronger.  While the immigrants don’t wear uniforms, that’s of no legal significance. And the movement of large numbers of people across borders to effect political transformation sounds pretty invasion-like to me.

But how does that shake out constitutionally?  Or does it even shake out (in court) at all?

Article I section 10 and article IV’s Guarantee Clause do in fact say what Gov. Abbot says they do, and his reading is certainly plausible.  But what will the Supreme Court say?

One possibility is that it won’t say anything.  There is a class of constitutional issues called “political questions” that the Court treats as “non-justiciable,” meaning that it can’t or won’t resolve them.  The most famous Guarantee Clause case was Luther v. Borden, which involved a sort of intrastate civil war in Rhode Island, with two different governments claiming to be the legitimate government of the state.  The Supreme Court declared that the legitimacy of one state government over another was a political question not subject to judicial resolution, but rather for the political branches to resolve.

From this decision came a view held by many that the Guarantee Clause itself was entirely non-justiciable, though as the Court noted in New York v. United States,  that’s not actually what the caselaw says.  (“More recently, the Court has suggested that perhaps not all claims under the Guarantee Clause present nonjusticiable political questions. See Reynolds v. Sims, 377 U. S. 533, 582 (1964) (‘[S]ome questions raised under the Guarantee Clause are nonjusticiable’). Contemporary commentators have likewise suggested that courts should address the merits of such claims, at least in some circumstances.)”  But the Guarantee Clause discussion has all involved the “republican form of government” provision; one might even treat the protection from invasion language as a clause separate from the Guarantee clause.  Here’s the language from the Constitution’s Article IV section 4:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

One might even refer to the “Invasion Clause” separately from the Guarantee Clause.  (As you might expect, the issue of failure to protect states from invasion hasn’t been a big one in the past.)

Would that issue be non-justiciable?  Well, the question of whether the federal government is protecting a state from invasion is probably susceptible to judicial determination.  On the other hand, the judicial remedy might be difficult to fashion.  Courts don’t like to just order executive officials to do a better job, dammit, and so the order that might result from such a determination is unclear.  The judge that I clerked for said that most lawyers don’t pay enough attention to the “wherefor part” of their brief, that is, the part where they ask for specific relief.  So what specific relief might Texas ask for that the Supreme Court could grant?  The President has a duty to take care that the laws be faithfully executed, but whether he’s living up to that is probably itself a political question, enforced by Congress largely via its impeachment powers.

Here, the most that Texas could hope for in litigation, I think, would be a declaration that it’s entitled to resort to self-help given the federal government’s failure to discharge its Article IV responsibilities.  But I question whether the Court  would be willing to go there.

Without that, it becomes a purely political fight.  If it were just a fight between the President and one governor – as, say, when President Kennedy supported the integration of the University of Mississippi – it might be kind of one sided.  As my old Constitutional Law Professor Burke Marshall said about the Mississippi standoff, “Of course, the president's gonna win in the end. He's got the whole Armed Forces of the United States. He can call in the Air Force; he can bring Navy ships up the Mississippi River; he can call out the Army as he did; he can drop parachuters in. I suppose he could shoot missiles at Oxford, Mississippi, so he's gonna win at the end. But the political matter is, is, is politics in, in a deep sense of political leadership so that the change that is gonna come about, is a change that is recognized and accepted and is not looked upon as having been imposed by force.”

But desegregation in 1962 was very different from the present situation where the President is supporting immigration that in fact violates existing United States laws by refusing to enforce those laws.  Kennedy, on the other hand, was enforcing a court order to desegregate.  And, of course, while open borders are popular with elites, they’re quite unpopular with the general public.  Add to that that Abbott has open support not only from members of Congress but from something like 25 other governors and it’s not much like Mississippi in 1962 at all.

Instead what you get looks disturbingly like the early stages of a civil war, and in fact a Rasmussen poll from last week found that Americans think just that:  “A sizable majority of the public supports Texas’s construction of a wall along its border with Mexico and feels that President Joe Biden’s efforts to stop it are the first step toward civil war. . . .  Asked, ‘Do you agree or disagree with this statement about the border dispute between Texas and the federal government: “The feds are staging a civil war, and Texas should stand their ground?” 55% said they agreed, while 36% said they didn’t.”

This is a bad position for the Biden Administration, which may explain our current sitzkrieg status, but it’s not a good position for anyone.

What do I think?  I think that Abbott is basically right.  The federal government is – deliberately – failing to enforce immigration laws, and it’s doing so for political purposes that are, in fact, a threat to “our democracy,” to use a term that the Democrats like to employ.  Given that failure, the states are entitled to resort to self-help.  This is especially the case where the states are essentially enforcing federal policy.  In Chamber of Commerce v. Whiting, the Supreme Court upheld an Arizona law that revoked business licenses of businesses hiring illegals, and required employers to use the federal e-verify system to verify eligibility for employment.  Since its function was essentially identical to federal statutes, it was not preempted by them even though Congress has plenary power over immigration.

Here, the Biden Administration is trying to make its own policy, inconsistent with the statutes.  While this is permissible as “prosecutorial discretion” in the interests of justice in a particular case, what the Biden Administration is doing in opening the borders wholesale is more akin to lawmaking, which Congress has already done on this subject, and to a very different purpose.  That being the case, I think Abbott is on firm ground here.  But I also think that better national leadership would have kept us from ever getting to this pass.

We’ll probably muddle through this without a civil war, but this is yet another case of guardrails being removed by our political class, which is such a monoculture, and which has lived without consequences for so long that it no longer believes in them. That will not end well if allowed to continue. Sooner or later, the muddling-through will fail, and there will be a steep price to pay.

Anyway, these are my (very) preliminary thoughts on this complicated subject.  I welcome your comments about things I may have gotten wrong.