Gov. Greg Abbott (R-Texas) made national headlines when he seized control of the worst breach in the U.S.-Mexican border. But his concentrated effort to block migrant crossings at Eagle Pas, Texas, turns out to be merely proof of concept. Yesterday he announced plans to extend his barrier and blockade operation further – and the Texas Nationalist Movement is paying attention. All this while Texas’ lawsuit against the Department of Homeland Security is now remanded to the District Court. So all the action is on the ground on the northern bank of the Rio Grande. Greg Abbott is now playing a very high-stakes game, with two elections hanging in the balance.
Status of the court cases
The status of the case of Texas v. DHS continues to create confusion. To review, the case has docket listings at the:
- United States District Court for the Western District of Texas (Austin Division), the
- United States Court of Appeals for the Fifth Judicial Circuit, and the
- Supreme Court of the United States of America.
Last year, District Judge Alia Moses, after first granting a temporary restraining order, denied a preliminary injunction. The Court of Appeals did grant an injunction pending appeal, forbidding the U.S. Border Patrol to cut the concertina wire the Texas National Guard has strung at the Eagle Pass crossing. Two weeks ago (January 22) the Supreme Court vacated the injunction, without comment.
On Friday the week before last (January 26), the Appeals Court panel issued a three-page order:
- Holding the appeal in abeyance,
- Canceling the oral argument they’d originally scheduled for February 8, and
- Remanding the case to the District Court for sixty days.
The appellate panel instructed Judge Moses to “develop further the factual record.” They did so after noting that the two parties “strenuously dispute” the facts on the ground. Accordingly Judge Moses has scheduled a two-day evidentiary hearing for March 4-5, 2024. Judge Moses also ordered the parties to file a ten-page (maximum) brief identifying the key points in factual dispute.
Greg Abbott did not wait
But Gov. Greg Abbott did not wait for any evidentiary hearings to take place. Indeed, before the ink was dry on the vacatur, the Governor order the Texas Army National Guard to seize Shelby Park, which is near Eagle Pass and has a boat ramp leading into the river. He also ordered the Guard to string more concertina wire along the riverbank side of the park.
Not a single legacy media outlet is properly interpreting the Supreme Court’s order. They all say the Court ordered the removal of the concertina wire. This is not correct. All the Court did was to cancel the Fifth Circuit’s order that the Border Patrol stop cutting the wire. That order said nothing to stop Greg Abbott and his troops from stringing more wire. Nor did the order say anything about requiring access to the wire by the Border Patrol.
So the National Guard is in control, and they are stringing more wire.
They also are deploying in small boats to patrol the river directly.
More recently Gov. Abbott posted these ever-more defiant messages:
The reference to “America’s Governors” refers to a statement by 25 other State governors in support of the Texas position. This represents every other Republican governor except Gov. Phil Scott (R-Vt.). Most of these governors by now have sent their own National Guard contingents, or pledged to do so soon.
Greg Abbott holds a press conference
Yesterday afternoon (February 4), at 2:30 p.m. CST, Gov. Abbott held a press conference at Shelby Park. Thirteen of those Republican State governors flanked him.
There he announced his intention to expand his border security efforts beyond Shelby Park.
The Texas National Guard… (are) undertaking operations to expand this effort. We’re not going to contain ourselves just to this park. Gov. Greg Abbott (R-Texas)
He posted these two announcements, one later that afternoon and the other close to Texas midnight:
In the second statement, he noted that his forces had reduced the crossing rate to three per day, down from well over five thousand.
Early this afternoon, Gov. Abbott disputed Joe Biden’s contention that he lacked the authority to secure the border.
Last night, of course, the so-called Border Deal by Sens. Jim Lankford (R-Okla.), Mitch McConnell (R-Ky.), and Charles M. Schumer (D-N.Y.), saw full publication. Laura Loomer, of course, said plenty about that at its release, and nothing good.
A very angry Dan Miller, head of the Texas Nationalist Movement, put in his two cents today:
So did the Texas Nationalist Movement:
Naturally Greg Abbott provided no details of his proposed expansion. But few can doubt that he will expand his border-security effort. He has gone too far to back down now.
Thus far Gov. Abbott has said nothing about Texas independence. Normally someone must introduce a bill to study the issue – or call a referendum. But the governor can call a special session of the legislature any time, to ask it to consider such legislation. That he hasn’t done so, could mean that he hasn’t thought about it. But he cannot fail to have heard about the option, directly from the Texas Nationalist Movement and through other channels. So he is trying to solve the problem by means short of pursuing secession.
Nor is he defying any court – because no court has specifically ordered that the barriers come down. The most that’s happening is an evidentiary hearing – in four weeks. The governor went to the courts for redress of grievances, and the Supreme Court – out of the misplaced compassion of one Member, and the desire of three other Members to “fundamentally transform” America, Obama-style – denied that redress.
Nor are rank-and-file Border Patrol agents eager to start any altercations with Texas National Guardsmen. Their union has said flatly that its members will not interfere.
The other governors
But the most important lesson from the events of this weekend is that Texas has many friends among the States. This goes to one other thing that the Constitution permits States to do if they consider themselves invaded. They may form an interstate compact to repel that invasion – which is what they are now doing. These Governors are pledging to send their own National Guard contingents to secure the border.
They are doing this because the federal government is reneging on their obligation, under Article IV Section 4, to protect the States against invasions. An invasion need not have a regular, uniformed, disciplined army to perpetrate it. These migrants, though they look like civilians, are irregulars – and irregulars can invade, the same as uniformed troops. Greg Abbott and his fellow governors understand this. Joe Biden – or rather, his staff – understand it, too, but won’t admit it.
Several questions, running through that staff’s minds, must give them nightmares. Will anyone obey their orders? The Border Patrol will make a mutiny if they push too far. But suppose they can field a contingent who will obey orders to invade Texas as a disciplined army. What will those other States do? And what about the armed effectives who hail from Texas and those other States?
These questions remain relevant even without an overt move toward secession. So Greg Abbott could achieve his aim without it. In any case, federal-State relations need to change. This confrontation could bring that change about.
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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