The U.S. Supreme Court on Monday agreed to temporarily let U.S. Border Patrol agents cut or remove razor-wire fencing that Texas officials placed along part of Republican Governor Greg Abbott’s efforts to defend the state's border with Mexico and deter illegal border crossings.
The New Orleans-based 5th U.S. Circuit Court of Appeals, which issued the disputed interim ruling, is set to hear arguments on Feb. 7 over whether Border Patrol agents violated Texas law by cutting the razor-wire barrier.
The justices, in a 5-4 decision, granted a request by President Joe Biden's administration to pause a lower court's ruling that temporarily blocked federal agents from disturbing the fencing while litigation over the issue proceeds.
Chief Justice John Roberts and Justices Amy Coney Barrett, Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor sided with the administration. Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas voted with Texas.
None of the justices provided any explanation for their vote. The one-page order looks like a victory for the Biden administration, but it merely allows the Biden to clear the wire while the lawsuit over the wire continues.
Conservatives, including the CHQ team, were infuriated by the Supreme Court’s order.
Rep. Chip Roy (R-Texas) called on Texas officials to ignore the Supreme Court ruling declaring the federal government could remove razor wire on the U.S.-Mexico border.
Roy called the opinion from the court “unconscionable,” and called for the state to ignore it in a post online.
“It’s like, if someone’s breaking into your house, and the court says ‘Oh, sorry. You can’t defend yourself.’ What do you tell the court?” Roy said according to reporting by Lauren Irwin of The Hill. “You tell the court to go to hell, you defend yourself and then figure it out later.”
And, as Governor Abbott said, “This is not over.”
Governor Abbott is right. The underlying lawsuit is proceeding before an apparently sympathetic 5th Circuit Court of Appeals, and Texas has hitherto unused additional options.
One of those options, which we recommend the Texas legislature and Governor Abbott pursue, is to make a formal declaration of invasion.
The Constitution in Article I, Section 10, Clause 3 states:
“No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”
And, Article IV, Section 4 of the Constitution states:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
Most of the existing Article IV, Section 4 law relates to the “guarantee clause” and what constitutes a “Republican form of government,” with the Supreme Court rarely getting involved in what it considers to be political questions.
The invasion question remains largely unexplored and might very well offer Texas the opportunity to proceed.
As the scholars at the Center for Renewing America explained, the Framers of the Constitution were keenly aware that the country would continue to face a variety of external threats from every direction, threats posed by lawless bands as well as threats posed by the forces of a foreign government. “The territories of Britain, Spain, and of the Indian nations in our neighborhood … encircle the union….” (Federalist No. 25.) Given the encircling nature of the various threats, the Framers concluded that it was appropriate to entrust the common defense against invasion to the federal government. “The [encircling] danger, though in different degrees, is therefore common. And the means of guarding against it, ought, in like manner, to be the objects of common councils, and of a common treasury.” (Id.) And they argued “that [the federal] government ought to be clothed with all the powers requisite to the complete execution of its trust.” (Federalist No. 23.)
For all these reasons, one may conclude with confidence that the original meaning of the word “invasion” contained in Article IV, Section 4 of the Constitution encompasses threats to the safety, security or well-being of the states and their citizens posed by any external group, not just those threats posed by the organized forces of a foreign government. Such threats include drug traffickers, gang members, other violent criminals, and suspected terrorists hidden among the throng of illegal immigrants that cross our undefended southern border, as well as the illegal immigrants themselves.”
What’s more, the Constitution in Article I, Section 10, Clause 3 recognizes that the states have inherent military power, and the authority to use it, when “actually invaded, or in such imminent Danger as will not admit of delay.”
As of today, the Highland County Press reports 50 county resolutions cite the invasion clauses of the U.S. Constitution, Articles IV, Section 4, which require the federal government to protect states from an invasion. They also cite Article IV, Section 7 of the Texas Constitution, which states the governor has the legal authority to command Texas military forces and call them up to “suppress insurrection and to repel invasions.”
Clearly, Texas is being invaded. We urge Governor Abbott and the leaders of the Texas legislature to take the next step in their efforts to repel the existing invasion by convening to pass a formal declaration of invasion according to the provisions of Article IV, Section 4 of the United States Constitution.
Texas
Governor Gregg Abbott
Invasion declaration
Biden adminsitration
Supreme Court
Eagle Pass Texas
razor wire fencing
border patrol agents
Rep. Chip Roy
nullification
U.S. Constitution
Article IV, Section 4
Texas Constitution