Texas Governor Greg Abbott (R) has done nearly everything except what his supporters on the right are praising him for: defy the Supreme Court and the Biden administration.
Abbott is in the middle of a crescendoing frenzy over the border, in which he has used the language of secession to claim that his state can invoke the Constitution’s Invasion Clause for self-protection while other GOP governors laud him, and activists praise him for supposedly defying a Supreme Court order.
The problem is that very little of this is real.
Texas invoked “invasion” in September in a court case, leading to a judge dismissing the claim as “breathtaking.” Texas is not defying a Supreme Court order from earlier this week which restored the Department of Homeland Security’s ability to cut razor wire to gain access to portions of the border in Texas.
Instead, Texas officials continue to work towards a goal that they have articulated for more than a year: creating a series of incidents which could lead to test cases before the Supreme Court overturning Arizona v. U.S., a 2012 decision upholding federal control of immigration and border enforcement.
“It comes down to trying to pick a fight with the federal government on immigration specifically so they can challenge Arizona v. United States,” Chelsie Kramer, Texas state organizer for the American Immigration Council, told TPM.
Texas has already challenged the government over the issue in several ways, leading to three lawsuits. One has to do with anti-personnel buoys placed by Texas authorities along the Rio Grande; another to do with a law Texas passed creating a state illegal immigration charge while empowering state judges to deport people; a third has to do with concertina wire which the Texas National Guard placed along the border, blocking both migrants and federal Border Patrol agents.
After the Supreme Court voided a lower court injunction barring the Biden administration from removing the razor wire, partisans on the right, including Rep. Chip Roy (R-TX) began egging Abbott on: disobey the order, they said.
Abbott did no such thing, but set in motion a process to make it appear as if he had. Texas law enforcement began laying down tons of additional razor wire, and Abbott himself issued a belligerent statement claiming that the federal government had “broken the compact between the United States and the states” while citing the Constitution’s Invasion Clause as giving Texas the right to “defend and protect itself.”
Abbott’s statement led to a massive outcry. Both conservative and liberal commentators and politicians interpreted it as defying the Supreme Court.
In reality, Abbott was referring to an ongoing standoff around a small park in the border town of Eagle Pass. Shelby Park is a small patch of land situated along the border and adjacent to a bridge connecting the town to Mexico. The bridge and park featured in a scene in the movie No Country for Old Men, where the main character throws a satchel full of ill-gotten cash from the bridge into the park below.
Federal Border Patrol agents have used the park’s boat ramp to access the Rio Grande River, and also used a field in the area to hold undocumented migrants as they await processing. But for the past several weeks, Texas law enforcement officials have blocked federal Border Patrol agents from accessing the park, while allowing members of the public and journalists past the cordon.
It’s a minor issue, but one with some symbolic significance in that it dares the federal government to file another lawsuit which could, again, end in a Supreme Court decision overturning Arizona v. U.S.
The Biden administration, in its responses, has separated the razor wire issue from the separate question of access to Shelby Park.
A DHS spokesman did not return TPM’s request for comment about whether any federal agents had attempted to cut the razor wire after the Supreme Court order was issued. But the agency sent a letter to Texas Attorney General Ken Paxton on Monday, demanding that it remove obstacles to its property along the border by Friday. Paxton replied on Fox News on Thursday, saying that Texas would continue to keep federal border patrol agents out of Shelby Park.
“DHS seems to be treating Texas like any other property owner near the Río Grande,” César Cuauhtémoc García Hernández, an immigration attorney and professor at the Ohio State University College of Law, told TPM.
Abbott has clothed the dispute in the language of secession and of defiance of the Supreme Court — a ploy which has gotten him attention nationally at time when immigration policy happens to be a central focus in Washington.
Kramer told TPM that she felt the posturing was fueled by a major legislative defeat last year: Abbott’s plan to create a school voucher system in Texas died near the end of 2023.
“He has to have a big win, something he can talk about, and immigration is the easiest thing,” Kramer said.
The move has gotten Abbott a lot of attention. Democrat Beto O’Rourke compared him to Orval Faubus of Little Rock Nine fame; Louisiana’s Republican Governor thanked Abbott for “reminding” the country that “states are still sovereign.”
Arguments around the Constitution’s Invasion Clause have not succeeded in court since Abbott attempted to raise the issue in September in the buoy case, and have not arisen in recent filings from Texas in the other two matters.
“The invasion clause is a convenient political ploy that allows Governor Abbott to frame himself as the person standing before the face of mayhem,” García Hernández remarked.
Texas Rep. Matt Schaefer (R), an early author of a draft of the bill empowering the state to override federal law and deport undocumented migrants, appeared caught off guard on Wednesday once he realized that Abbott had only issued a press release, and not formally asserted the state’s supposed right to self defense under the Invasion Clause in the razor wire case.
Meanwhile, local officials and residents in Eagle Pass have expressed dismay at the stunt.
Texas law enforcement officials managed to enter Shelby Park in June after Eagle Pass’s mayor agreed to a state request to use the property as part of Operation Lone Star, Abbott’s $10 billion effort to use state resources to police the border. Juanita Martinez, a local activist and head of the county Democratic Party, told TPM that residents began to complain about the move, causing the city council to void the agreement.
The town would like to sue to enforce it and kick state law enforcement out of the park, she added, but it lacks the money to fund litigation.
David Leopold, an immigration attorney, told TPM that he doubted Abbott seriously wanted the responsibility which would come with “actual control or authority over the border.”
“This isn’t about solutions or stopping people from coming into Texas. It’s about creating and maintaining confusion and disarray and chaos at the southern border so they can run on it in 2024,” Leopold told TPM.