Texas told the Biden administration to take a hike.
But this isn’t “nullification”.
Texas insists that the Biden administration enforce the laws of the United States.
Biden has so far refused and instead retaliated by cutting off natural gas exports from Texas.
In other words, Biden has chosen economic warfare against a State, the very definition of treason in the Constitution, to appease the hard left faction in his political party.
This is the very thing the founding generation feared from the executive branch.
Some background is in order.
Texas Governor Greg Abbott directed the Texas National Guard to construct obstacles—barbed wire fencing and shipping containers–on land adjacent to the Rio Grande River. This is Texas property, not federal land.
The United States Border Patrol used it as a processing center for illegal aliens, and thus it became a focal point for massive numbers of “migrants” crossing into Texas across the Rio Grande River.
Invasion would be a better word.
Texas then told the Border Patrol that they were no longer allowed on State property while Texas law enforcement began arresting and deporting illegal aliens.
The Federal Government sued in federal court and demanded that the razor wire and makeshift border wall come down. Biden’s Justice Department also argued that Texas’ efforts to enforce federal immigration law violated the Constitution.
“Texas cannot run its own immigration system. It’s efforts, through SB 4, intrude on the federal government’s exclusive authority to regulate the entry and removal of noncitizens, frustrate the United States’ immigration operations and proceedings, and interfere with U.S. foreign relations.”
Here’s the catch. Texas isn’t running its own immigration system. It’s enforcing existing federal law.
Every officer in the United States, from the local governments to the President, takes an oath to uphold constitutional federal law. Biden did so in 2021. That is the primary language of his oath of office.
Biden has not claimed that immigration laws are unconstitutional. He has not claimed that these people are crossing the border legally.
He admits that they are entering Texas illegally, meaning his only job is enforcing the laws on the books, something his administration is clearly refusing to do.
Texas has done it for him.
But this raises several larger Constitutional questions.
The Founders unequivocally considered “invasion” to be one of the important reasons States maintained control of their own militia units.
That would be the modern misnamed “National Guard.”
Biden cannot “nationalize” the Guard in this instance because federal law would not allow it.
The Texas National Guard is already enforcing federal law, meaning that if Biden nationalized the Guard and told them to stand down, he would be in violation of the Constitution.
He would also violate federal law. The Insurrection Act of 1792 allows the President to nationalize the militia (National Guard) in three instances: to suppress insurrection, stop domestic violence, or enforce federal law.
Allowing invasion is not on the list. Nor is breaking the law.
That would be a dereliction of duty, an impeachable offense.
The parallels between Biden’s actions and other stand-offs between the States and the general government are impossible to find.
Texas wants to enforce federal law.
In 1798, Virginia and Kentucky nullified the Alien and Sedition Acts because they violated the Constitution. This wasn’t a case of neglect.
In 1815, several New England States refused to enforce laws in support of the War of 1812. Again, not a case of neglect.
In 1832, South Carolina nullified the federal tariff. Jackson threatened to send in the army to collect the tariff. He wasn’t refusing to enforce a federal law.
In the 1840s and 1850s, several Northern States refused to enforce the fugitive slave laws. The Supreme Court ruled that States did not have to use their own police powers to support federal law.
But in this case, Texas is supporting federal law. The Biden Administration has vacated its Constitutional responsibility.
The Justice Department’s claim that the general government has “exclusive authority to regulate the entry and removal of noncitizens” would also be news to the founding generation.
States could determine residency and who could and could not be within their borders. Jefferson made this contention in the Kentucky Resolutions of 1798. After 1808, the general government could prohibit “persons” from entering the States, but this power was not denied to the States in Article I, Section 10, meaning the States could also allow or prohibit “persons” from entering their borders.
The “supremacy clause” only applies to laws made in “pursuance of the Constitution.”
Nor does the 14th Amendment cover illegal aliens. Only citizens of the States are entitled to due process and the privileges and immunities of citizens of the other States. Foreign nationals are not citizens of any State or the United States.
This is an open and shut case of dangerous abuse of power by the executive branch. If the Republicans in Congress had any spine, they would immediately impeach Biden for his action against Texas and inaction on immigration enforcement.
In the Philadelphia Convention, James Madison listed “negligence” and betraying “his trust to a foreign power” as the chief causes of impeachment, among others.
Attempting to coerce a State though economic boycotts would satisfy Gouverneur Morris’s definition of “treachery”, what he considered to be an impeachable offense.
In either case, Biden should be easily convicted and booted from power.
That is, if we had a real Constitutional government in the federal city.
That dream died in 1789 in the First Congress.
I discuss all of this on Episode 926 of The Brion McClanahan Show.
