Today the federal government sued a State for trying to defend the U.S.-Mexican border when the federal government will not. After Gov. Greg Abbott (R-Texas) defiantly said, “We’ll see you in court,” the federals said in effect, “Court it is.” In other words, the government is going to court to keep the border wide-open to an invasion. The governor of Texas repeated his willingness to defend, in court, his sovereign power to defend against “actual invasion.”
The Texas river barrier
Gov. Abbott first talked about installing a string of buoys on the midline of the Rio Grande in June. The buoys rotate on their cable if anyone tries to climb over them. A net, dangling from the cable, stops people from trying to swim underneath it. Anyone trying to clear the net, risks the river current sweeping them downstream.
Even earlier than that – six months ago, actually – Gov. Abbott handed President Biden a letter when Biden visited El Paso. In it he outlined five specific proposals that, he said, would stop the “humanitarian crisis” at the border. Those proposals were (and are) to:
- Detain all illegal foreign nationals (and not to release them pending a court appearance),
- Reinstate and enforce the Trump-era Remain in Mexico policy,
- Prosecute illegal entry at all American ports of entry,
- Finish the border wall (after Biden ordered wall contractors to down tools and go home), and
- Designate drug cartels as Foreign Terrorist Organizations.
Biden has consistently refused to do any of these things, and indeed refused even to answer Abbott’s letter. Hence Operation Lone Star, a program under which Texas would take its own action to secure its border with Mexico. The river barrier is part of Operation Lone Star. For authority, Abbott claims Article I Section 10 Clause 3 of the Constitution, which reads:
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
The Texas governor officially regards the continued incursion of illegal migrants as an invasion.
Threat, response – and the suit
Gov. Abbott began installing his first string of buoys near Eagle Pass, Texas. Almost at once – on July 13 – eight Texas Democrats in the House sent a letter of protest to Attorney General Merrick Garland and Secretary of State Anthony Blinken.
They suggested the barriers might violate international law.
Then on Friday (July 21) those eight Representatives – and seventy-nine other Congressional Democrats – sent a letter to the President himself.
In addition to protesting the buoys, they cited an unconfirmed report that Texas Department of Public Safety troopers and National Guard troops were pushing migrants back into the Rio Grande. (UPI repeated that claim.) Texas officials have refuted those claims, but DPS will investigate.
In response, according to ABC News, the Department of Justice, in a letter to the governor, threatened to sue him. They cited the Federal Rivers and Harbors Act and “humanitarian concerns” in their letter.
The Texas governor sent this thread:
In it he disputed the statutory violation claims and asserting the authority of a State to defend against invasion.
If you truly care about human life, you must begin enforcing federal immigration laws. By doing so, you can help me stop migrants from wagering their lives in the waters of the Rio Grande River. You can also help me save Texans, and indeed all Americans, from deadly drugs like fentanyl, cartel violence, and the horrors of human trafficking.
But now the Justice Department has said in effect, “Let it be court, then.” They sued in the U.S. District Court for the Western District of Texas (Austin Division).
What the lawsuit says
The nine-page complaint alleges violations of the Rivers and Harbors Act, 33 U.S.C. §§ 406 and 413. Specifically Gov. Abbott built a structure – the string of buoys – in a navigable water of the United States, without permission from the Army Corps of Engineers. The government wants those barriers to come down.
This is not the first time federal agents have interfered with a barrier Gov. Abbott installed on his own authority. U.S. Border Patrol agents cut through a section of razor wire strung along the northern riverbank – also in Eagle Pass. They did so to admit illegal immigrants.
The Border Patrol defended their action as consistent with federal law.
Stringing the buoys was likely a response to the wire-cutting incident.
In an interview with Fox News, the governor vowed to defend the lawsuit in the District Court, the Fifth Circuit Court of Appeals, and, if necessary, the United States Supreme Court.
Ken Cuccinelli, a former Attorney General of Virginia, hailed the Texas action as a “test” of the Actual Invasion Clause.
At last report the court intends to assign the case to a magistrate judge in the Austin Division. Eagle Pass lies within the Western District, and the Austin Division includes the State capital.
Texas action, national reaction
The Dallas Morning News reports that President Biden has avoided engaging the governor directly, to the chagrin of immigration advocates. Rep. Joaquin Castro (D-Bexar Co.), for example, criticized Biden “for leaving the issue to underlings.”
Texans for Strong Borders condemned the lawsuit and agreed with Abbott that an “invasion” is taking place.
The Texas Nationalist Movement has, so far, said nothing about this latest legal action. They are concentrating on a new petition drive to place on the ballot a public question to establish a committee to study the secession of Texas from the United States.
If any event required the Texas Nationalist Movement to comment, this is it. It goes directly to one of their main issues with the federal government: refusal to defend the border. This non-defense started within hours of Biden taking office – when he ordered border wall contractors to down tools and go home.
The Constitution obligates the federal government to protect against invasion. (Article IV Section 4.) An invasion is taking place, and the federal government is, if anything, facilitating it. Therefore Article I Section 10 Clause 3 applies, now that Texas is “actually invaded.” Not all invaders come wearing a uniform or answering to a general or other military officer. Indeed many of the illegal immigrants have been Chinese nationals of military age. Even laying that aside, we deal here with human trafficking.
For all these reasons, Gov. Abbott is acting properly. But perhaps before this case even comes to trial, an election will take place. The test will actually come sooner than that – for CNAV expects the government to move for a preliminary injunction. Given the government’s position in Missouri v. Biden, that will be ironical in the extreme. Furthermore, briefing and argument on an injunction motion could happen during primary or Convention season.
Finally, the federal government, by acting as they have done, have signaled that the Texas governor has stung them. And that they want the border open. This will indeed be a true test of seriousness of purpose, on both sides.
Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.
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