The Texas Constitutional Crisis

Is it possible that we are witnessing a watershed moment in U.S. history?

Today, January 24, Governor Greg Abbott of Texas issued a statement asserting Texas’ constitutional right to self-defense. This comes after Abbott’s declaration that an invasion was occurring on the southern border back in September 2023, and his mobilization of the Texas National Guard and other law enforcement agencies to address the invasion. Meanwhile, the Supreme Court of the United States of America ruled on January 22 in favor of the federal government and its efforts to remove razor wire that had been placed by Texas on its own accord. Despite this ruling, Texas continued to place razor wire.

Now, in an official declaration, Governor Abbott has taken things to a new level. Many have said for years that “nothing ever happens” but this is, by all accounts, something happening. You see, in his statement on the border crisis, Governor Abbott accuses the United States federal government and the President of the United States of having “broken the compact between the United States and the States” in the very first sentence. He accuses Joe Biden of both failing to enforce the law and actually breaking the law itself. He declares that Biden has violated his oath of office, that he and his agencies are facilitating the invasion of Texas and the whole nation, and that his illegal and negligent actions have harmed the People of the United States. Finally, he states the following:

James Madison, Alexander Hamilton, and the other visionaries who wrote the U.S. Constitution foresaw that States should not be left to the mercy of a lawless president who does nothing to stop external threats like cartels smuggling millions of illegal immigrants across the border. That is why the Framers included both Article IV, § 4, which promises that the federal government “shall protect each [State] against invasion,” and Article I, § 10, Clause 3, which acknowledges “the States’ sovereign interest in protecting their borders.” Arizona v. United States, 567 U.S. 387, 419 (2012) (Scalia, J., dissenting).

The failure of the Biden Administration to fulfill the duties imposed by Article IV, § 4 has triggered Article I, § 10, Clause 3, which reserves to this State the right of self-defense. For these reasons, 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.

After the SCOTUS ruling, many on the Right urged Abbott to stand his ground and to continue his efforts to secure the border even if it meant defying the federal government. So far, that is exactly what he has done. But it is important to recognize that he is not only ignoring a federal ruling and the President, but is officially, as Governor, accusing them of illegal actions, assisting in an invasion, and breaking the compact between the US government and its States. He has even claimed that Texas’ constitutional authority supersedes all federal statutes which may stand in its way of self-defense. In other words, the razor wire will continue to be placed and Texas law enforcement and military personnel will not cooperate with any federal efforts to pause its defensive efforts.

This is an escalation of a conflict that has been brewing for many months. This declaration challenges the federal government directly and makes some very grave claims about the actions of the federal government. The ball is now in the hands of the Biden Administration. We can only speculate as to what will happen next. Regardless, it is clear that unless one side backs down or relents, a genuine constitutional crisis may be upon us, one that has the possibility to turn into violence.

The way I see it, there are a few obvious scenarios which may play out:

1. The federal government gives in and allows Texas to continue its efforts unimpeded. Texas wins and the federal government shamefully loses.

2. The federal governments presses the issue further in some way, either by continuing efforts to remove razor wire, impeding the process Texas is undertaking, or even making arrests, and Texas gives in. This may sound like a federal victory, and it is in a sense, but is really a Pyrrhic victory. That is because such an act would show the federal government is downright tyrannical, that is does not care about the mass illegal immigration occurring on the southern border, and that it is willing to go to great lengths to facilitate illegal immigration. It would be a blot on Biden’s record and likely boost Trump’s chances.

3. Option 2 happens but instead of Texas standing down, Texas stands firm. How this plays out is either back to option one, or an increasingly tense back and forth which either ends with one side finally folding or in emergency measures that may result in open and violent conflict. This option is the one which has potential to send the U.S. down the road of Civil War.

We should not take this situation lightly. While it may not be the most likely outcome, the idea of Civil War in the U.S. seems to be pressing upon the national consciousness. There is even a movie being made about it. The media bombards voters with apocalyptic imagery every day, suggesting that Trump’s victory in November would spell the end of the country. Everyone seems to feel that the end may not be as far away as previously thought.

I do not want to contribute to sensationalist thinking or doomsday predictions, but I do think it is necessary for us to read the clock and understand what time it is. This is a time of great consequence for this country. There are good outcomes, bad outcomes, outcomes that perpetuate the status quo, and outcomes that result in unthinkable horrors. One thing is clear: this country is divided, it is worried, and it is increasingly willing to enter into confrontation. There is hardly a soul who is satisfied with the situation, and yet neither side has yet taken that first and most dangerous step to initiate radical change. We are witnessing a standoff, and it could end in terrible ways.

To be clear, I believe that Governor Abbott is right. The situation at the southern border is a mess, and the answer is not to let more people in. If government has a responsibility to protect its people and its sovereignty, then Texas is within its rights to secure the border. However, we should recognize that we are in a delicate situation, and that, frankly, Civil War is the worst possible outcome, even if it is extremely unlikely. Someone who I believe stands as a clear voice of reason on this matter is

Conundrum Cluster

. He rightly points out in general that Civil War would be a nightmare and that it does not necessarily or even likely end in a victory for the Right. He wrote today that this crisis could even be used as a pretext to come down harder on the Right and that it may lead to even greater tyranny on the part of the Biden administration.

Obligatory contrarian take on the Texas border standoff

He says:

I don’t think an actual civil war or anything close to it has any chance of happening, but the pretext of an impending civil war could be used by the feds to justify a lot of things to the general public that they normally wouldn’t be able to justify. It could also be used to bait conservatives into making mistakes they normally wouldn’t make. The powers at be could totally annihilate the American Right, without any organized opposition, right now.

Even if things to do escalate to a Civil War, that does not mean that drastic and tyrannical measures cannot or will not be taken. Keep this in mind.

For now, all we can do is watch and wait. It will be interesting to see if other state governments come out in support of Governor Abbott. Already the governor of Oklahoma, Kevin Stitt, has signaled support for Texas. If a concerted and coordinated effort to support Texas takes place, the federal government will be in an even more precarious position.

To conclude, I will recall the words of Carl Schmitt:

Legality has become a poisonous dagger, with which one party stabs the other in the back.

Let us hope that this battle takes place in the courts rather than in homes, fields, mountains, valleys, and city streets. Let us pray that justice, rule of law, and the rights of the people to protect themselves win the day.