FAIR | The United States is on the verge of a constitutional crisis, one that enlivens the nationalist fervor of Trump America and that centers on a violent, racist closed-border policy.
Texas Gov. Greg Abbott (NBC, 1/14/24): “The only thing we are not doing is we’re not shooting people who come across the border, because, of course, the Biden administration would charge us with murder.”
In January, the Supreme Court, with a five-vote majority that included both Republican and Democratic appointees, ruled that federal agents can “remove the razor wire that Texas state officials have set up along some sections of the US/Mexico border” to make immigration more dangerous (CBS, 1/23/24). The state’s extreme border policy is not merely immoral as an idea, but has proven to be deadly and torturous in practice (USA Today, 8/3/23; NBC, 1/14/24; Texas Observer, 1/17/24).
In a statement (1/22/24), Texas Attorney General Ken Paxton decried the decision, saying that it “allows Biden to continue his illegal effort to aid the foreign invasion of America.” Paxton, a Republican, vowed that the “fight is not over, and I look forward to defending our state’s sovereignty.”
Texas Gov. Greg Abbott, also a Republican, “is doubling down, blocking the agents from entering the area,” the PBS NewsHour (1/25/24) reported. PBS quoted Abbott declaring that the state’s constitutional authority is “the supreme law of the land and supersedes any federal statutes to the contrary.”
University of Texas law professor Stephen Vladeck (Houston Chronicle, 1/26/24) observed that Abbott’s position “has eerie parallels to arguments advanced by Southerners during the Antebellum era.”
For a great many people, a Southern state invoking its “sovereignty” over the federal government in defense of violent and inhumane policing of non-white people sounds eerily familiar to the foundation of the nation’s first civil war. And 25 other states are supporting Texas in defying the Supreme Court (USA Today, 1/26/24), although none of them are states that border Mexico.
Texas media are sounding the alarm about this conflict. The Texas Tribune (1/25/24):
From the Texas House to former President Donald Trump, Republicans across the country are rallying behind Gov. Greg Abbott’s legal standoff with the federal government at the southern border, intensifying concerns about a constitutional crisis amid an ongoing dispute with the Biden administration.
Houston public media KUHF (1/24/24) said this “could be the beginning of a constitutional crisis.” University of Texas law professor Stephen Vladeck said in an op-ed in the Houston Chronicle (1/26/24) that Abbott’s position is a “dangerous misreading” of the Constitution.
Other legal scholars are watching with concern. Erwin Chemerinsky, dean of the law school of the University of California at Berkeley, told FAIR, “I think that this is reminiscent of Southern governors disobeying the Supreme Court’s desegregation decisions.” He added, “I agree that it is a constitutional crisis in the sense that this is a challenge to a basic element of the Constitution: the supremacy of federal law over state law.”
But the New York Times has not covered the issue since the Supreme Court decision came down (1/21/24). The AP (1/27/24) framed the story around Donald Trump, saying the former president “lavished praise” on the governor “for not allowing the Biden administration entry to remove razor wire in a popular corridor for migrants illegally entering the US.” The Washington Post (1/26/24) did show right-wing politicians and pundits were using the standoff to grandstand about a new civil war. NPR (1/22/24) covered the Supreme Court case, but has fallen behind on the aftermath.
The “legal expert” quoted in Fox News‘ headline (1/25/24) works for America First Legal, a group founded by white nationalist Stephen Miller to “oppose the radical left’s anti-jobs, anti-freedom, anti-faith, anti-borders, anti-police, and anti-American crusade.”
Meanwhile, Fox News (1/25/24, 1/25/24, 1/27/24) has given Texas extensive and favorable coverage of its feud with the White House, citing its own legal sources (from America First Legal and the Edwin Meese III Center—1/25/24) saying that Texas was in the right and the high court was in the wrong.
Breitbart celebrated Abbott’s defiance as a states’ rights revolution, with a series of articles labeled “border showdown” (1/24/24, 1/24/24, 1/24/24, 1/25/24, 1/28/24) and several others about Republican governors standing with Texas in solidarity (1/26/24, 1/28/24).
The white nationalist publication American Renaissance (1/25/24) stood with Abbott but lowered the temperature, saying that it is “unclear whether this could cause a constitutional crisis, but the optics are not great for the White House in an election year.” “This will not be a ‘Civil War’ or anything close to it unless someone on the ground wildly miscalculates by firing on the Texas National Guard,” the openly racist outlet asserted. Rather, the publication saw Abbott as recentering the immigration debate as a way to weaken President Joe Biden’s reelection chances. “We couldn’t hope for a better start to the election-year campaign,” it said.
The National Review (1/28/24) admitted that Abbott is probably wrong on the constitutional question. Nevertheless, it called him the “MVP of border hawks” for orchestrating a public relations coup by forcing the federal government’s hand:
Abbott has managed to get the federal government in the position of actually removing physical barriers to illegal immigration at the border and insisting that it is imperative that it be permitted to continue doing so. This alone is a PR debacle for the administration, but it comes in a controversy—with its fraught legal and constitutional implications—that will garner massive attention out of proportion to its practical importance.
This is impressive by any measure.
The support of Republican states for Abbott elevates the matter further, but this also is a relatively small thing. The backing for Abbott is entirely rhetorical at this point and perhaps not very serious on the part of some Republican governors. It nonetheless serves to elevate a conflict over security on a small part of the border into what feels like a larger confrontation between all of Red America and the federal government.
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