The Supreme Court Is Now Complicit in Texas’ Armed Standoff With the Feds

Texas Gov. Greg Abbott is inciting a conflict between Border Patrol and the state’s National Guard that is inching closer and closer toward a violent clash between armed agents of state and federal law enforcement. The governor, as commander in chief of the Texas Guard, has directed his soldiers to block Border Patrol’s access to migrants, physically preventing federal officers from performing the duties assigned to them by Congress and the president. Abbott has received key assistance from the U.S. Court of Appeals for the 5^th Circuit, which cleared the way for him to obstruct federal border enforcement.

Tensions on the ground are escalating by the hour, as the Texas Guard—emboldened by the 5^th Circuit—is wiring off an ever-greater portion of the border. The Guard is refusing entry to all federal law enforcement and to active duty service members. Even in an emergency, like the potential drowning of a migrant, the Texas Guard will not let federal officers or service members through to the border. If the Supreme Court does not reverse the 5^th Circuit very soon, there is a real possibility that Abbott’s partisan stunt will spiral into open battle between the state and federal governments.

The current dispute is yet another consequence of Operation Lone Star, Abbott’s cynical effort to usurp authority over immigration from the Biden administration. It’s also symptomatic of the failure of our judiciary and the Supreme Court’s inability, or lack of desire, to check radical Trump-placed judges below it that issue far-right rulings with devastating consequences for democracy and human rights. The multibillion-dollar “operation” in question here directs Texas Guardsmen and state troopers to police the southern border and arrest migrants who cross over without authorization. It has utterly failed to reduce unlawful border crossings, though it has produced egregious acts of cruelty toward migrants; guardsmen have tried to drown these individuals, deprived them of water, and left them to suffer heat exhaustion in the tangle of razor wire set up by the state.

This razor wire, which stretches for dozens of miles, is designed to ensnare migrants and prevent Border Patrol from reaching them. The wire is located on the U.S. side of the border—which means that by the time migrants reach it, they are on American soil. Federal law grants Border Patrol the right to access all land within 25 miles of the border; it also requires border agents to inspect, process, arrest, and detain migrants on U.S. soil. The Texas Guard, however, has barred agents from performing these tasks. It has fenced off a large section of Eagle Pass, an area where migrants frequently cross the Rio Grande into the United States, and has banished Border Patrol from entering. Border Patrol tried to monitor the area by boat, but the Texas Guard put a chain around the gate to the boat ramp so that border agents couldn’t use it. Guardsmen also piled dirt on both sides of the gates that provide access to the Rio Grande in order to block federal access to the river.

The Texas Guard’s actions are in direct conflict with federal law. Moreover, Abbott has directed guardsmen to push unauthorized migrants back across the border, which further contradicts federal law: Congress has deemed these migrants “applicants for admission” once they reach U.S. soil and has granted them certain rights, such as the ability to seek asylum. Texas has effectively nullified multiple federal statutes by trying to turn away migrants and forbidding Border Patrol from intercepting them.

States, of course, have no constitutional prerogative to nullify federal law. This principle was established during the nullification crisis of the 1830s and the Southern resistance to desegregation during the Civil Rights era. Nor, under the Constitution’s supremacy clause, can states interfere with the lawful exercise of federal authority; this rule is one of the oldest and most entrenched in all of constitutional law.

In response to Texas’ illegal nullification scheme, Border Patrol started to cut down the state’s razor wire. Texas responded by suing the Department of Homeland Security for trespassing on the state’s property. A district court rejected the claim, but the 5^th Circuit embraced it in a defiant opinion by Judge Stuart Kyle Duncan, a Donald Trump appointee. (Judge Don Willett, another Trump appointee, joined in full; Judge Catharina Haynes, a less extreme George W. Bush appointee, declined to sign on.)

Duncan’s opinion rested largely on a deceptively edited video submitted by Texas that, according to the state, shows border agents cutting the wire to let in migrants, then refusing to intercept them as they wander into the country. This video, Duncan asserted, proved that Border Patrol was not fulfilling its legal duties. (Federal officials have attested that, in reality, these migrants were directed to a staging area where they were detained, an event that was apparently edited out of the footage.) So Duncan and Willett issued an injunction barring border agents from cutting through the wire, except in the case of medical emergencies. (Federal officers would need up to half an hour to cut through the wire, significantly delaying their response to such an emergency.)

The Department of Justice promptly asked the Supreme Court to halt the 5^th Circuit’s decision. When the court did not act right away, Solicitor General Elizabeth Prelogar filed an unusual update informing the justices that Texas had set up more wire over a larger area to prevent federal agents from even monitoring the border, refusing entry to their mobile surveillance trucks. She also noted that the Department of Defense had deployed active-duty service members to aid federal law enforcement but that Texas Guardsmen blocked with these troops too, prohibiting them even from refueling Border Patrol’s generators.

Shortly thereafter, Prelogar provided a second, even more urgent update. After Mexico informed federal authorities that two migrants were in distress on the U.S. side of the Rio Grande, a border agent asked the Texas Guard for access to the river. A guardsman refused. The agent spoke to a supervisor, a staff sergeant, who declared that border agents could not enter the area, “even in emergency situations.” Mexican rescuers were dispatched to save the migrants, who were suffering from hypothermia. They also discovered three migrants—a woman and her two kids—who had drowned when trying to cross the river.

This case should be one of the easiest that the Supreme Court has ever confronted. For more than 200 years, SCOTUS has forbidden state authorities from interfering with the execution of federal law. Texas, abetted by the 5^th Circuit, has disobeyed that foundational principle. It has done so by nullifying border policy enacted by Congress, which holds constitutional authority over immigration. Why has the Supreme Court taken so long to respond? Why did the justices not immediately freeze the 5^th Circuit’s decision? Their delay may have encouraged the radical court, which allowed Texas to maintain a dangerous, 1,000-foot barrier in the Rio Grande on Wednesday. It seems unlikely that five justices agree that Abbott can void Congress’ commands. But what else explains the delay? Does the court’s 2021 decision to let Texas nullify Roe v. Wade suggest that the conservatives are open to more mutinous nullification?

All we know for sure is that, with each passing day, the Supreme Court grows more complicit in Texas’ lawless nullification scheme. The Justice Department’s filings have grown increasingly alarmed; Prelogar has highlighted the fact that “armed personnel” of the state are in conflict with both border agents and active-duty service members. There is, in short, a standoff at the border. It cannot last forever. Texas Guardsmen have become progressively more confrontational, declining to give Border Patrol access even for medical emergencies (in violation of a court order). They keep expanding the area that’s fenced off to the federal government, asserting an absolute right to lock out both border and military officers. The situation is eerily reminiscent of 1861, when Confederates opened fire on Fort Sumter following Union soldiers’ refusal to evacuate, marking the start of the Civil War.

We are not really on the verge of a civil war. But Abbott appears desperate to egg on a clash between his guardsmen and the federal government, one that could spill over into violence. The situation is a case study in what happens when far-right politicians, aided by equally far-right courts, collude to sabotage a Democratic president’s right to exercise his basic constitutional powers. If SCOTUS does not end the standoff soon, the lessons of 1861 may become shockingly applicable today.