Does Texas Have The Right To Defend Its Border?


February 7, 2024

By Dale Wilcox

The federal government is accusing the state of Texas of violating the law in taking action to stop the influx of illegal aliens at its southern border, but the Lone Star State has both the legal and the moral high ground to do so.

The crisis at the U.S.-Mexico border reached a crescendo late last month after a narrow Supreme Court majority ruled in favor of the federal government’s authority to cut down razor wire Texas had put up in order to repel illegal aliens seeking to enter the state. This ruling and the subsequent actions of the Biden Administration provoked a fierce response from Texas Gov. Greg Abbott. 

“James Madison, Alexander Hamilton, and the other visionaries who wrote the U.S. Constitution foresaw that States should not be left to the mercy of a lawless president who does nothing to stop external threats like cartels smuggling millions of illegal immigrants across the border,” the governor said.

Abbott cited multiple provisions of the U.S. Constitution, including Article IV, Section 4, which requires the federal government to protect states from invasion. Abbott also cited Article 1, Section 10, Clause 3 to back up his state’s authority to defend itself from invasion. Predictably, allies of the Biden Administration and anti-borders activists accused the governor of defying the Supreme Court, with some elected officials calling on Joe Biden to federalize the Texas National Guard in order to bring the state to heel. This is preposterous. Texas is not defying the Supreme Court, and it has done nothing to run afoul of the Constitution.

The Supreme Court’s unexplained order simply vacated an injunction that had prohibited the federal government from cutting Texas’ razor wire. It did not order Texas to take or not take any action. This case and other related cases will make their way through the courts, but Texas has solid constitutional grounds to defend itself. As Immigration Reform Law Institute Director of Litigation Chris Hajec explained at a congressional hearing on Tuesday, states “may pass non-preemptive laws,” and “may also decide to engage in war,” in order to defend themselves from invasion.

The notion that states are powerless to defend themselves from invasion is farcical. There is no chance the states would have ever agreed to ratify a Constitution that left them powerless to defend themselves in the face of a foreign invasion enabled by a lawless federal government. They didn’t because the Constitution does give states recourse to do exactly what Texas is doing.

Beyond the legal arguments being made against the state of Texas, the moral logic anti-borders activists are using to deride the state are equally unconscionable. Essentially, the Biden Administration believes they can facilitate an invasion of the state of Texas, run roughshod over its way of life, destroy its ranches and communities, and Texans are just supposed to sit back and take it all. The complete disregard the current administration has for the second-largest state in the country they are supposed to defend is a major reason Texas and the nation at large have reached such a boiling point over this crisis.

There is no chance the states would have ever agreed to ratify a Constitution that left them powerless to defend themselves in the face of a foreign invasion enabled by a lawless federal government.

For three years, the Biden Administration’s anti-borders agenda has facilitated the arrival of millions of illegal aliens. The good news is that accountability appears to finally be coming, not just in Texas, but in Washington, D.C. as well. After years of tough talk, the House of Representatives finally appears ready to make good on its threat to impeach Department of Homeland Security Secretary Alejandro Mayorkas, who has spent the last three years refusing to enforce federal immigration law. The American public is also making clear that they’ve had enough as immigration is now the top concern facing U.S. voters, according to a recent poll. Amidst all of the backlash, the Biden Administration is feeling the heat.

While there have been no changes in policy, public outcry has forced Biden into a rhetorical retreat. Biden finally admitted recently that he has failed to secure the border after spending years denying there was a crisis at all. The White House also released a statement from Biden late last month requesting that Congress give the administration authority to “shut down the border,” which he pledged to do.

To be clear, this is empty rhetoric from an administration that already has all the tools it needs to end the crisis. Still, the significant shift in messaging demonstrates how Texas’ resilience and a motivated Congress have put this administration on its heels, and forced it to finally confront the magnitude of the crisis it created.

With its future at stake, Texas is showing the Biden Administration that it picked the wrong state to mess with. Despite assertions to the contrary, Texas has both a legal and a moral right to defend itself, and it should use every tool at its disposal to do so.

Dale L. Wilcox is executive director and general counsel for the Immigration Reform Law Institute, a public interest law firm working to defend the rights and interests of the American people from the negative effects of mass migration.

Also published at AMAC, February 7, 2024.

Get Connected

Sign up for our email newsletter to stay up to date with immigration reform in the United States.

Attorneys United for a Secure America (AUSA) is a non-partisan affiliation of talented attorneys dedicated to pursuing cases that serve the national interest when it comes to immigration law.

If you are interested in joining the network, visit the AUSA website.