Legal experts and members of Congress have started to urge President Joe Biden to seize control of the Texas National Guard, which Governor Greg Abbott is using to defy federal law and a U.S. Supreme Court ruling while continuing to obstruct federal agents from accessing the border.
“Texas’s constitutional authority,” Governor Abbott claimed Wednesday, “is the supreme law of the land and supersedes any federal statutes.”
For months, the Texas Republican governor has been ramping up his attacks on the Biden administration’s handling of what right wing pundits and politicians call the “border crisis,” undocumented immigrants and asylum seekers crossing from Mexico into the United States.
Alleging Texas is now under “an invasion,” Gov. Abbott issued an inflammatory statement tinged with language so defiant that The Nation’s justice correspondent, Elie Mystal joked, “I read this in the original Confederate.”
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Abbott claims, wrongly according to U.S. Constitution and to the conservative-majority U.S. Supreme Court, that Texas law “supersedes” federal law, and vows to continue to not only continue to lay down more deadly razor wire but to block federal border patrol agents from accessing the border.
CBS Texas Wednesday evening posted this report:
Abbott alleges in his statement President Biden has violated the U.S. Constitution.
“The federal government has broken the compact between the United States and the States. The Executive Branch of the United States has a constitutional duty to enforce federal laws protecting States, including immigration laws on the books right now,” Abbott declares in his statement. “President Biden has refused to enforce those laws and has even violated them. The result is that he has smashed records for illegal immigration. Despite having been put on notice in a series of letters one of which I delivered to him by hand President Biden has ignored Texas’s demand that he perform his constitutional duties.”
Citing “James Madison, Alexander Hamilton, and the other visionaries who wrote the U.S. Constitution,” Abbott decrees, “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.”
“I have already declared an invasion under Article I, § 10, Clause 3 to invoke Texas’s constitutional authority to defend and protect itself,” Abbott warns. “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.”
Some experts are warning Abbott’s defiance and refusal to obey the Supreme Court and the Constitution could spark a second U.S. Civil War.
Professor of Law Eric Segall, who teaches about the federal courts and constitutional law and is the author of books on originalism and the U.S. Supreme Court, wrote: “Wow, I predicted Texas might not comply. Is this bluffing or is Texas going to start Civil War II.”
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Professor of law and political scientist Anthony Michael Kreis first mocked Abbott, then took a deep dive into his statement.
Calling Abbott’s statement “sincerely bat shit crazy,” Kreis asked, “Did John Calhoun write this?” He was referring to the 19th century U.S. vice president who was a defender of slavery and supporter of nullification, the alleged “right” of a state to “nullify” a federal law it claims is unconstitutional.
“By this logic,” wrote University of Texas School of Law professor of law Steve Vladeck, referring to Abbott’s statement, “states could use their own determination that an ‘invasion’ exists as a justification for usurping control of whichever federal policies they don’t like. Whatever you think about current immigration policy, this is just a 21st-century re-packaging of nullification.”
Kreis continued, also writing, “Joe Biden should respond to Greg Abbott by federalizing the Texas National Guard,” and suggested some of Abbott’s “rhetorical choices” echoed “the Texas secession ordinance from 1861.”
U.S. Reps. Joaquin Castro (D-TX) and Greg Casar (D-TX) also said President Biden should take control of the National Guard in Texas.
“Governor Greg Abbott is using the Texas National Guard to obstruct and create chaos at the border,” Congressman Castro wrote on Tuesday. “If Abbott is defying yesterday’s Supreme Court ruling, @POTUS needs to establish sole federal control of the Texas National Guard now.”
Congressman Casar, agreeing with Congressman Castro, added on Wednesday, “Greg Abbott has continued to use political stunts and inflammatory language to advance his own agenda, violating the Constitution and endangering both U.S. citizens and asylum seekers.”
“Abbott is following the Donald Trump playbook: make immigration harder and more dangerous, so asylum seekers are pushed into the hands of cartels and the system remains broken,” Casar wrote. “I agree with @JoaquinCastrotx: if Abbott is defying yesterday’s Supreme Court ruling, @POTUS needs to establish sole federal control of the Texas National Guard.”
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Sawyer Hackett, a Democratic strategist and senior advisor to Julian Castro, adds, “South Texas Rep. @JoaquinCastrotx is urging President Biden to nationalize the TX National Guard—as reports indicate Gov. Abbott is defying *the Supreme Court* with his continued obstruction of federal authorities. Abbott isn’t above the law. This is a good fight to pick.”
Hackett added:
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