Texas’ Standoff With the Border Patrol Is a Constitutional Powder Keg

Republican governors, echoing language of slavery defenders, are challenging federal authority.

Texas Army National Guard soldiers attached razor wire to a temporary fence closing off access to the Rio Grande in Eagle Pass.

Texas Army National Guard soldiers attached razor wire to a temporary fence closing off access to the Rio Grande in Eagle Pass.Suzanne Ringle/Texas National Guard via ZUMA Press Wire

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“The Federal Government has broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization…Under the Constitution, the states are granted no such powers.” —Takahashi v. Fish & Game Commission (1948)

For decades, the Supreme Court has been clear that the federal government, not the states, has the power to regulate immigration. Since 2021, however, Texas has been spending billions annually to impose its own vision of immigration policy—an effort known as “Operation Lone Star.” Using members of the Texas National Guard and Texas Department of Public Safety, “Operation Lone Star personnel work around-the-clock to detect and repel illegal crossings.” Gov. Greg Abbott, a Republican, has pledged to “hold the line” at the southern border due to alleged inaction by the Biden administration. 

Over the years, Operation Lone Star has become increasingly aggressive. In 2024, it has brought the country to the precipice of a constitutional crisis. 

The epicenter of the confrontation between Texas and the federal government is Shelby Park, a municipal park in Eagle Pass, Texas, that abuts the Rio Grande River. In this map of the area, submitted by the federal government in a legal filing, the area of the park is defined by the yellow line and the river:

Texas has seized control of Shelby Park, enclosing the entire 47 acres in razor wire and denying entry to the US Border Patrol. 

Access to Shelby Park is important to federal authorities because it is used as a “staging area for policing and interdiction operations along the Rio Grande.” This includes the use of a boat ramp in the park to access the Rio Grande. 

Texas’ seizure of Shelby Park and refusal to allow federal officials access have created an extremely dangerous situation. On January 12, three migrants—a woman and two children—drowned in the Rio Grande near the park. When Border Patrol agents went to Shelby Park to address the situation and help other migrants in distress, guardsmen from the Texas National Guard refused to let them enter, saying “they had been ordered not to allow Border Patrol access to the park.” 

The legal battle between Texas and the federal government over Shelby Park began when Texas sued the federal government for cutting and removing some of the razor wire it installed along the Rio Grande. Border Patrol argued that the razor wire was putting its agents and migrants legally entitled to claim asylum at risk. Texas argued that the federal government was illegally destroying its property. The state eventually won an injunction from the Fifth Circuit of the United States Court of Appeals, prohibiting the federal government from disturbing Texas’ razor wire. The federal government, however, appealed to the Supreme Court. On January 22, in a brief order, the Supreme Court sided with the federal government and lifted the injunction. 

Texas’ response to the Supreme Court order has been alarming. Abbott issued a statement stating that “[t]he federal government has broken the compact between the United States and the States.” Compact theory was championed by John C. Calhoun, one of the staunchest defenders of slavery. It essentially views states as “independent sovereigns” that are free to reject federal authority. It was used to justify the “nullification” of federal laws and, ultimately, secession from the union by Southern states. 

As law professor Steven Vladeck notes, the specific constitutional argument Abbott is advancing makes even less sense. This is the key excerpt from Abbott’s letter:

I have already declared an invasion under Article I, § 10, Clause 3 to invoke Texas’s constitutional authority to defend and protect itself. That authority is the supreme law of the land and supersedes any federal statutes to the contrary. The Texas National Guard, the Texas Department of Public Safety, and other Texas personnel are acting on that authority, as well as state law, to secure the Texas border.

Abbott is claiming that he can simply declare an “invasion” and grant himself authority that “supersedes any federal statutes.” This is legal hogwash. 

Article I, § 10, Clause 3 of the Constitution declares that “no State shall, without the Consent of Congress…engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” In this case, Texas is not being invaded. Migrants, many of whom have legitimate claims of asylum, presenting themselves at the border is not an invasion. Illegal border crossings are something that occurs under every administration and does not constitute an invasion. Further, Abbott is not responding by engaging in “war.” He has not invaded Mexico. He has put up some razor wire. But his actions are, according to Vladeck, “antithetical to the constitutional structure of our federal system,” which establishes the supremacy of federal law. 

Notably, Texas is not yet defying the Supreme Court’s January 22 order. That order simply lifted the Fifth Circuit injunction preventing the federal government from removing the razor wire installed by Texas in Shelby Park. The Supreme Court hasn’t yet ordered Texas to do anything. 

But Texas is continuing to interfere with the federal government’s access to Shelby Park, in clear violation of the Constitution and federal law. On January 23, the Department of Homeland Security wrote a letter to Republican Texas Attorney General Ken Paxton, demanding “the ability to access the border in the Shelby Park area that is currently obstructed by Texas.” In a January 26 response, Paxton rejected the Department of Homeland Security’s request and informed the federal government that Texas will continue “to protect its southern border against every effort by the Biden Administration to undermine the State’s constitutional right of self-defense.” 

The conflict that Texas is creating with the federal government will almost certainly end up back at the Supreme Court. And Texas is inviting a constitutional crisis by signaling that it is prepared to ignore the Supreme Court if it does not get its way. 

The radical and dangerous legal theories being advanced by Texas previously provoked a Civil War and have been broadly rejected for more than a century. So, one might expect Texas to get little support from other states. That is not the case. 

On January 25, the Republican Governors Association released a letter signed by 25 Republican governors “supporting Texas’ constitutional right to self-defense.” The governors write that they “stand in solidarity with our fellow Governor, Greg Abbott, and the State of Texas in utilizing every tool and strategy, including razor wire fences, to secure the border.”

They also explicitly endorsed compact theory, which was used to justify secession. “The authors of the US Constitution made clear that in times like this, states have a right of self-defense, under Article 4, Section 4 and Article 1, Section 10, Clause 3 of the U.S. Constitution,” the governors write. “Because the Biden Administration has abdicated its constitutional compact duties to the states, Texas has every legal justification to protect the sovereignty of our states and our nation.” The letter was signed by every Republican governor except Phil Scott (R-VT). 

Former President Donald Trump is also supporting Abbott. Trump called on “all willing States to deploy their guards to Texas to prevent the entry of Illegals.”

Speaker of the House Mike Johnson (R-LA), and numerous members of Congress have also aligned themselves with Abbott. Congressman Chip Roy (R-TX) said Texas should tell the Supreme Court to “go to hell.” Roy was so proud of this remark, he made a special graphic for his social media accounts. 

Claiming that Texas has a duty to ignore the authority of the federal government unsurprisingly attracts dangerous extremists. “A trucker convoy of ‘patriots’ is heading to the U.S. border with Mexico next week,” Vice reports. The group, which has dubbed itself “God’s Army,” believes they are “on a mission to stand up against the ‘globalists’ who they claim are conspiring to keep U.S. borders open and destroy the country.”

A fundraising effort for the group has already raised more than $113,000. “Once willing to die defending this country, now willing to die protecting my family from what this country has become,” one anonymous donor wrote. The convoy is being heavily promoted by far-right conspiracy theorist Alex Jones. “There’s a war literally happening now for America,” Jones said. 

The convoy is expected to reach Eagle Pass on February 3. 

This story was originally published on Judd Legum’s Substack, Popular Information, to which you can subscribe here.

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