It’s a topic the nine justices could face again with deciding if President Joe Biden’s refusal to stem to flow of illegals crossing the border constitutes an invasion or is a question of immigration.
For now, the Supremes reversal of an appellate ruling means federal Border Patrol agents can cut concertina wire, installed by the the State of Texas to stop illegal immigrants, while litigation continues.
“This is not over. Texas’ razor wire is an effective deterrent to the illegal crossings Biden encourages. I will continue to defend Texas’ Constitutional authority to secure the border and prevent the Biden administration from destroying our property,” Abbott wrote on X after the Court’s decision.
Lt. Chris Oliver, a spokesman for the Texas Department of Public Safety, says his officers will comply with the governor and will “maintain its current posture in deterring illegal border crossings by utilizing effective border security measures.”
That means the continued use of “reinforced concertina wire and anti-climb barriers along the Rio Grande.”
“Texas will continue to hold the line,” Oliver vowed.
Will the Feds eventually cross that line? The U.S. Constitution gives Texas – or any state – the right to hold the line, but that authority comes with strings attached, so the language is up for debate.
In a second statement, posted Jan. 24, the Texas governor said the federal government has "broken the compact" between itself and the U.S. states over an "invasion" at the southern border.
Farther down in the statement, Gov. Abbott said the writers behind our Constitution "foresaw" the danger of the states being left to the mercy of a "lawless" president. That is why the document describes the responsibilities of the federal government against invasion in Article IV, Abbott wrote. It also gives legal recourse to states in Article I, he said, which mentions states have a "sovereign interest in protecting their borders."
What does the U.S. Constitution say?
Article 1, Section 10 doesn’t spend a lot of time on individual states taking up arms. It actually lumps the topic into several other actions states cannot take without the consent of Congress.
It says states cannot engage in war “unless actually invaded or in such imminent danger as will not admit delay.”
So there are two points to debate.
Is what’s happening at the border an act of friendly immigration or of hostile invasion?
If it’s an invasion, does it present imminent danger?
U.S Border Patrol agents have encountered a record 169 illegal crossings of persons identified on the FBI’s terror watchlist. The number does not include “gotaways,” and it’s reasonable to assume, given the simplicity of crossing into America under the Biden administration, those who feel the need to evade authorities may in fact be coming to the U.S. with impure motives.
“What I think our leaders need to get out of politically is talking about this like an immigration issue necessarily, because once you're talking about invasion under Article 1, Section 10, you're not talking about immigration law,” Texas GOP chair Matt Rinaldi said on American Family Radio Tuesday.
Some of the legislation proposed during the last session of the Texas legislature suggested the immigration issue falls under the Supremacy Clause, Rinaldi said, but it is not when the federal government fails to defend a U.S. state.
The Supremacy Clause of the Constitution holds that federal law, generally, takes precedence over state law and even state constitutions.
"We have the right to defend ourselves and we need to assert that right very decisively and very clearly. That’s the next thing we need to do,” Rinaldi told show host Jenna Ellis.
Rinaldi believes there’s a great deal of support for Abbott invoking the invasion provision. That doesn’t mean such a decision would easily pass both chambers of the state legislature.
Republicans control the Senate and the House, but House Speaker Dade Phelan doesn’t always come down on the conservative side of things. That could be a roadblock to further aggressive actions by Abbott.
“There’s a fairly broad consensus that we need to take broad, bold action. There’s a fairly broad consensus in favor of everything that Gov. Abbott's done so far and even going further," Rinaldi advised.
"Your hold-up right now legislatively is that the Texas House is run by Speaker Dade Phelan, who claims to be a Republican but effectively governs with Democrats," the Republican leader advised. "In the session previous to this, he blocked the most meaningful border legislation that was passed with Democrats supporting him."
Prediction: SCOTUS will rule on complex issues
There may be other questions for the Supreme Court to tackle, New York attorney Ron Coleman told show host Jenna Ellis.
He says Biden’s unwillingness to enforce existing federal laws relative to the border is blatant disregard for those laws.
“I think ultimately the Supreme Court's going to have to wrestle with the issue of whether or not it is within the discretion of the executive branch to affirmatively violate United States law by not enforcing that law at the border but also preventing a state from enforcing its own laws,” Coleman said. “There is a complex issue of federal supremacy here that admittedly has to be dealt with.”
Arguing in favor of state’s rights ultimately did not help the southern U.S. in the run-up to the Civil War.
The invasion language in the Constitution notwithstanding, Coleman doesn’t believe the Supreme Court would ultimately place the rights of the state of Texas above the desires of the U.S. government.
“If there’s something in the Constitution you’ve got to address it, you’ve got to respect it," Coleman observed. "So, I would make that argument, but I would also have no trouble understanding if the Court were to say, ‘This nonetheless does fall under federal supremacy.’ This is an issue that goes to the heart of our country's survival as a sovereign country, and I applaud the government of Texas for doing what it did."
Editor's Note: This story has been updated with a Jan. 24 statement from Texas Gov. Greg Abbott.