By: The Editorial Board – wsj.com – February 2, 2023
The Del Rio border sector, which covers Eagle Pass, reported 152,000 “encounters” in the last three months of 2023. This is insanity and everybody knows it. Mr. Abbott has proved the political effectiveness of busing many migrants to “sanctuary” jurisdictions, including Chicago and New York, which are now crying for help in a way that finally has the Democratic Party’s attention.
Yet the scuffling in Eagle Pass, particularly around Shelby Park, is alarming. This 47-acre site on the Rio Grande includes soccer fields and a boat ramp, and in happier times it hosts concerts. Lately the Border Patrol used it as a staging spot for processing migrants, but the Texas National Guard (TNG) took control of the area three weeks ago, under an emergency declaration signed by Mr. Abbott.
In a Jan. 14 letter, the Department of Homeland Security complained that the Border Patrol was being denied access. “The combination of armed TNG soldiers and equipment, fencing, and concertina wire is blocking Border Patrol from a total of approximately 2.5 miles of the U.S.-Mexico border,” it said. “We demand that Texas cease and desist.”
Part of the dispute is who owns what. The feds say they have property rights acquired via condemnation, plus an easement from the city. In two reply letters, Texas Attorney General Ken Paxton demanded “plat maps and deeds,” while saying that any deal between Eagle Pass and the U.S. government is void under the Texas constitution without state approval.
He also makes sweeping arguments. The feds cite a law granting warrantless access to land within 25 miles of the border. Mr. Paxton quotes the next line, “for the purpose of patrolling the border to prevent the illegal entry of aliens.” The AG adds: “President Biden has ordered your agency to do the exact opposite, in keeping with his open-borders campaign promise. There is not even a pretense that you are trying to prevent the illegal entry of aliens.”
Mr. Abbott, meantime, has declared that illegal migrants constitute an “invasion,” triggering a clause in the U.S. Constitution that he recently said “reserves to this State the right of self-defense.” Therefore, the Texas National Guard is acting under a power that “supersedes any federal statutes to the contrary.”
Hmmm. The provision in question says states need Congress’s permission before they “keep Troops, or Ships of War in time of Peace,” or “engage in War, unless actually invaded.” The first question is whether migration, however anarchic, is an “invasion.” Do conservatives really want to start stretching constitutional terms? Progressives will do that better.
And what power is Texas even trying to unlock? If migrants who have walked 1,000 miles qualify as an invading army, does Mr. Abbott intend to “engage in War” on them? In any case, when federal and state prerogatives conflict, the former reign supreme. Mr. Abbott quotes Justice Antonin Scalia’s dissent in Arizona v. U.S. (2012), which points to the Invasion Clause as proof of “the States’ sovereign interest in protecting their borders.”
But Scalia wasn’t picking a fight with the Supremacy Clause. “I accept as a given,” he wrote, “that State regulation is excluded by the Constitution when (1) it has been prohibited by a valid federal law, or (2) it conflicts with federal regulation—when, for example, it admits those whom federal regulation would exclude, or excludes those whom federal regulation would admit.” If Texas blocks the Border Patrol from the border, it’s hard to see how that can stand.
Mr. Biden is doing a terrible job at the border. He’s still the President.
Another point of friction in Eagle Pass is that the state has put up concertina wire, which the feds keep cutting. “Both the Border Patrol and Texas agree that the c-wire must be cut in the event of an emergency, such as the threat of a migrant’s drowning,” the Fifth Circuit Appeals Court said in December. But in another incident cited by that panel, the Border Patrol allegedly cut the razor wire, installed a “climbing rope,” and then let 4,500 migrants pass.
The Fifth Circuit issued an injunction against the Border Patrol, which the Supreme Court, in a 5-4 vote last week, vacated without explanation. The Justices haven’t ordered Texas to do anything specific, so claims that Mr. Abbott is defying them are overblown.
But it isn’t hard to imagine a more direct conflict emerging if Texas continues trying to box out the Border Patrol in Eagle Pass. Would Mr. Abbott or other officials defy a resulting court order and risk contempt? Would Mr. Biden invoke the Insurrection Act to have the military intervene?
Let’s hope it doesn’t go that far. Mr. Abbott is getting his political point across, but he shouldn’t want to trigger a constitutional showdown he will lose.
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