Greg Abbott's Low Level Constitutional Crisis-and Insurrection?

January 25th, 2024

On Wednesday, Texas Governor Greg Abbott issued a statement in part declaring illegal immigration an “invasion” and stated that the Texas was using its constitutional right to self-defense. Part of the statement read:

“The controlling majority of the Federal Government, under various pretenses and disguises, has so administered the same as to exclude the citizens of the Southern States, unless under odious and unconstitutional restrictions, from all the immense territory owned in common by all the States on the Pacific Ocean, for the avowed purpose of acquiring sufficient power in the common government to use it as a means of destroying the institutions of Texas and her sister States.

“The Federal Government, while but partially under the control of these our unnatural and sectional enemies, has for years almost entirely failed to protect the lives and property of the people of Texas against the illegal immigrants on our border, and more recently against the murderous forays of banditti from the neighboring territory of Mexico; and when our State government has expended large amounts for such purpose, the Federal Government has refused reimbursement therefor, thus rendering our condition more insecure and harassing than it was during the existence of the Republic of Texas.

“These and other wrongs we have patiently borne in the vain hope that a returning sense of justice and humanity would induce a different course of administration.”

Except that’s not his statement. It’s a portion of Texas’s Declaration of Causes, the document declaring its secession in 1861. Compare the two:

Abbott’s statement captures not just the tone but also mirrors some rhetoric from that document. What he has done is claim extraconstitutional powers that only the President of the United States holds. He has twisted and wholly taken out of context any legal decision by the Supreme Court or argument in the Federalist Papers.

Governor Abbot has, by his actions, started a low-level rebellion.

Merriam-Webster defines rebellion as “opposition to one in authority or dominance.” This doesn’t require declaring independence or shooting at federal agents. After the Supreme Court of the United States sided with President Biden and ordered Texas to remove the razor wire it illegally set up across the border, Abbot replied he’d add more of the stuff. This act of defying the Supreme Court goes beyond politics or rhetoric; it fundamentally challenges the Supremacy Clause of the Constitution. Exactly like 1861.

This comes after months of escalation, starting with the Texas National Guard patrolling the border on their own, outside the authority of the Border Patrol and erecting fencing. They escalated by forcibly throwing migrants into the Rio Grande River while prohibiting federal agents the ability to give them water. And now, they are setting up road blocks in Eagle Pass and refusing to let federal agents enter.

This isn’t the first time that a state has attempted to usurp Federal authority as granted by the Constitution. While the Civil War was fought over preservation of the Union and slavery (to Confederate apologists-the state’s right to what? A person’s right to what?) and is the best-known attempt to elevate State power over the Federal Government, the Nullification Crisis (1831-1833) was solved by negotiation and the reduction of tariffs after then-President Jackson forced South Carolina stand down by threat of military action.

The most recent one was the Little Rock Nine. On September 4, 1957, Arkansas Governor Orval Faubus deployed the National Guard to support the segregationists blocking the nine Black students from entering Central High School after Brown v Board (1954). President Eisenhower warned the Governor not to interfere with the Court’s ruling, but Faubus refused to listen. Eisenhower ordered the 101st Airborne into Little Rock and federalized the Arkansas National Guard, two drastic actions that worked once all other options were off the table.

At the heart of each instance was an effort to suborn the Federal Government and the Constitution to the whim of a State or States. Abbott is on the wrong side of history and in the company of some of the most vile people to ever call themselves Americans. Governor Abbott has the right to lobby Congress, to personally appeal to the President, to make his pleas public via the media, and to campaign on these issues. He does not have the right to hold himself as a higher authority than the Supreme Court of the United States or the Federal Government.

Biden has demanded that Governor Abbott stand down by Friday the 26th (tomorrow) and allow federal agents to tear down the razor wire fences. In response, Texas Republicans are calling on Governor Abbott to allow an en masse registration to its State Guard, a separate organization from the Texas National Guard, in case President Biden were to federalize the Texas National Guard. Donald Trump even encouraged other states to send their National Guard units to Texas in a show of solidarity. As of now, Vermont Governor Phil Scott remains the lone Republican governor who has not issued a statement supporting Abbott’s illegal actions.

If Governor Abbott does not stand down, President Biden should federalize the Texas National Guard to comply with the Supreme Court’s order. That is the moderate and reasonable response to a governor who is refusing to follow judicial orders. Should, may God forbid, the Texas National Guard refuse the order to federalize, Governor Abbott will have escalated this crisis and the state of Texas should be declared to be in a state of insurrection.

This entire constitutional crisis should be laid at the feet of Governor Abbott. He alone has the power to launch this into a full insurrection or to back down. I sincerely pray that he chooses to accept constitutional rule and stand down.

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