Texas border dispute and defiance

The Texas border dispute now has led to open defiance by Texas officials against the federal government. At issue is whether the Department of Homeland Security, and its agents the Border Patrol, may freely admit migrants and make no effort to stop them, while Texas may do nothing to stop them on its own. The Texas border dispute reached the Supreme Court, which yesterday vacated such injunctive relief as Texas had lately won. In response, Gov. Greg Abbott (R-Texas) told the Court something akin to what President Andrew Jackson famously said. The Texas Nationalist Movement is paying close attention – so the Texas border dispute couldn’t have happened at a worse time.

How the Texas border dispute came to this pass

Recall that Texas has sought in three ways to shore up its border with Mexico, along the Rio Grande. Texas has taken these measures to deal with a steady stream of migrants who are crossing into Texas without rest. So Texas is doing three things:

• Placing physical barriers within the Rio Grande. They’ve placed a string of ballards, or buoys, along the river’s centerline.
• Stringing concertina wire along riparian property lines, with the consent of the property owners. Those owners, in any case, welcome any effort to keep migrants off their land. These migrants kill livestock, leave litter, and sometimes threaten the lives of the owners and/or their farm or ranch hands.
• Defining unlawful entry into or presence in Texas as misdemeanor criminal trespass, thus empowering State and local police to arrest these migrants.

The current flash point concerns the concertina wire. From the beginning, elements of the Border Patrol have cut the wires, on the pretext of aiding migrants in distress. Texas has sued the Department of Homeland Security, the parent department of the Border Patrol, in District Court. Texas v. DHS, case no. 2:23-cv-00055. Texas asked for a preliminary injunction from the District Court. Judge Alia Moses granted the order on October 30.

She extended it twice – but on November 29, she denied any further injunction. She reasoned that she was not sure Texas was likely to prevail on the merits, from the evidence then available.

The appeal

So Texas appealed the case. (Case no. 23-50869.) On December 19, 2023, a three-judge panel of the Fifth Circuit Court of Appeals voted 2-1 to grant an Injunction Pending Appeal to Texas, to stop the wire cutting. Judges Kyle Duncan and Don Willett, both Trump appointees, voted in favor. Judge Catharina Haynes, a Bush Junior appointee, noted simply that she would have preferred instead to expedite the appeal. She did not file a formal dissent.

Early this year, the federal government appealed to the Supreme Court. (Application no. 23A607.)

From supplemental federal briefs one can deduce that the following things happened. On January 10, the Texas National Guard took over Shelby Park, near Eagle Pass, Texas. They proceeded to string more concertina wire, and to forbid access to the park by federal agents. (First supplemental brief, filed January 12.)

Then on January 12 – according to the government – Mexican authorities “advised Border Patrol of two migrants in distress on the U.S. side of the river” near the Shelby Park boat ramp. They also asserted that a woman and two children had drowned in that area. The Texas National Guard refused to let the Border Patrol investigate – but the staff sergeant dispatched two Guardsmen to investigate. Officials later learned that the two migrants had swum back across, and a Mexican official boat fished them out. Nevertheless, on January 15, the government filed a second supplemental brief essentially complaining that the National Guard had cost three lives and could have cost two more.

The vacatur

One week later – yesterday, January 22 – the Court issued a terse order vacating the injunction – without comment.

Unusually, the order notes exactly who voted against it: Justices Samuel A. Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas. Therefore, we know that Chief Justice John Roberts and Justices Amy Coney Barrett, Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor voted in favor.

Activist Lauren Witzke, on her Telegram channel, speculated that Justice Barrett voted to vacate out of misplaced compassion. Witzke cited this as an example of why young women do not belong in positions of authority at that level. Chief Justice Roberts, observing tradition, always votes last, so he would have known that his was the deciding vote. He voted to vacate, perhaps for the same reason he voted for Obamacare – whatever that reason was.

Gov. Abbott is apoplectic, unrepentant, and defiant. At 5:50 p.m. Central Time, the governor issued this statement:

The X account Leading Report posted, at 6:45 p.m. Central Time, that Abbott said the following:

At 9:26 p.m. Central last night, Lt. Chris Olivarez of the Texas Department of Public Safety issued this statement:

Four minutes after midnight Eastern, Leading Report quoted Elon Musk as making this accusation:

Today at 12:27 p.m. Central, Gov. Abbott issued this statement on his account:

At 2:41 p.m. Central Time, came this from Leading Report:

Earlier, The Post Millennial shared video of the Texas National Guard installing more concertina wire:

John Marshall has made his decision; now let him enforce it. President Andrew Jackson, in response to an obiter dictum in Worcester v. Georgia, 31 U.S. 515 (1832).

Texas border dispute could explode into secession

But that’s not all. The Texas Nationalist Movement already has weighed in on the Texas border dispute. Immediately after the order came down, TNM said this:

As an aside, they noted that all those migrants put on buses are not all the migrants that have crossed into Texas – not even the bulk of them.

The TNM explicitly called for Texas secession as the only solution to the Texas border dispute.

Apparently they have the support of a similar movement in New Hampshire, among others:

This user said the Supreme Court just gave Texas justification for a national divorce!

TNM even sent a letter to Gov. Abbott. In it they called on the Governor to intervene in a dispute they have with the Republican Party of Texas. The RPT disallowed TNM’s petition to have the question of Texas independence appear on the Republican Primary ballot this springtime.

TNM published two podcasts last night, one on their dispute with the RPT and the other on the Texas border dispute:

When Tucker Carlson explicitly called on “the men of Texas” to take border defense into their own hands,

TNM asked Carlson to have their head, Dan Miller, on his program.

Today Newsweek made the Texas border dispute the subject of their cover story. Naturally, TNM took notice:

Analysis

Thus far Gov. Abbott’s approach to the Texas border dispute has been to avail himself of the minutiae of the law. Right now, no authority stops the Border Patrol from cutting the concertina wire the Texas National Guard has strung up. But: no authority stops the Texas National Guard from stringing more concertina wire. In fact, for the moment, nothing compels Texas to remove those ballards from along the Rio Grande, either.

The next escalation will come when, as, and if the Border Patrol decides to confront the Texas National Guard directly. Such a scenario might play out this way. A squad of Border Patrol cuts through the concertina wire. Another squad, or platoon, of National Guardsmen move in later and re-strings the wire. But as they are doing that, Border Patrol elements approach, draw their weapons, and cry, “Halt, or we’ll shoot!” The Guardsmen do not halt – and the feds shoot.

Or: the Adjutant General dispatches a team – say, a platoon – to walk, on the private property side, toward a breach in the fence that the Border Patrol just cut. Their orders: interdict a stream of migrants entering through the breach. The Lieutenant says:

You have committed criminal trespass on private property. You are all under arrest. If you wish not to be under arrest, you will turn back immediately and go back the way you came.

The migrants start to turn back – and then they hear another command:

¡No se muevan!

That command, being in Spanish, is addressed to the migrants, not to the National Guardsmen. In response to this interference, the Lieutenant approaches the Border Patrol leader, and says:

We are here, at the behest of the owner of this land, to defend that land against these migrants. By commanding them not to move, you are interfering with a law-enforcement action of the State of Texas. You may leave.

Fatal escalation

And when they don’t leave, the Lieutenant orders his men to remove them. That might play out once or twice. But sooner or later, someone is going to draw his service weapon and fire it in anger. Result: a combat death or deaths.

That could start a Fort Sumter-like battle – or perhaps not. But at a minimum, TNM’s Dan Miller will be on the phone to Gov. Abbott, asking in so many words, whether the governor will listen now to the obvious suggestion: “Texit.” Whereupon the governor, faced with having to write Deeply Regret letters to Texas National Guard Gold Star families, calls the Legislature into special session for the purpose of passing a Texit Referendum Bill. Passage would be virtually certain, and a vote would take place September 1. If it passes – and it could scarcely fail! – then the Texit Study Committee would immediately sit and hold hearings.

What happens next depends on whom the Decision Desk declares the victor in the Presidential Election of 2024. If it’s Trump, standoff supervenes until Trump takes office. Whereupon he reverses the Biden administration policies that occasioned the breach. Hence, no more wire cutting, and Trump even seeks to reimburse Texas for the concertina wire and the ballards.

But if it’s Biden – then Attorney General Paxton again sues a “swing State” (Georgia, Pennsylvania, Michigan, Wisconsin, or Arizona). When that fails, the Texit Study Committee commissions a deputation to Washington, D.C. Its mission: to demand satisfaction of Texas’ grievances, or present a declaration of secession of Texas from the Union. What happens after that, one might as well ask the un-worthies at the Transition Integrity Project. Their Scenario 3, with a slight modification, would then play out. As readers will remember, that scenario, had it played out, might have escalated to civil war.