Tensions are rising as the crisis continues.
I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”
Today's read: 11 minutes.
- U.S. officials said they failed to intercept a drone that killed three U.S. soldiers because it followed a U.S. drone onto the base, causing confusion over whether it was hostile. (The report)
- Senior national security officials from Saudi Arabia, Jordan, Egypt, and the Palestinian Authority are meeting to coordinate plans for governing Gaza post-war. (The planning) Separately, Israeli intelligence shared information with the U.S. to support allegations that at least 12 people in the United Nations' 13,000-person workforce in Gaza were involved in Hamas's attack on October 7, and 10% had affiliations with militant groups. (The intelligence)
- A former IRS contractor was sentenced to five years in prison for leaking federal tax returns of famous Americans including former President Donald Trump and Amazon founder Jeff Bezos. (The sentence)
- French farmers blocked major roads across Paris as part of a weeks-long protest for better pay and working conditions. (The protests)
- U.S. and Chinese officials discussed joint efforts to combat the flow of fentanyl into the U.S., a notable point of cooperation amid tense relations. (The talks)
- BREAKING: The Justice Department is conducting a criminal investigation into Rep. Cori Bush (D-MO) for the misspending of federal security money. (The investigation)
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The Texas border standoff. On Friday, the Supreme Court ruled that the federal government has the authority to access a park abutting the Rio Grande and remove razor wire installed by the state of Texas. The Department of Homeland Security told Texas to give it access to the fencing, which is in Eagle Pass, by Friday, but Texas has refused. Texas Attorney General Ken Paxton demanded proof that the federal government has authority over the border, while Gov. Greg Abbott (R) doubled down, saying he'll increase state border patrol and add more barriers and razor wire.
The background: Customs and Border Patrol (CBP) confirmed 302,034 migrant encounters at the border in December, a new record. Since the beginning of the Biden administration, CBP has had over 6 million encounters with unauthorized migrants on the border. According to the Cato Institute, roughly four million of those encounters were in border sectors that are partly or completely inside Texas. Further, close to two million migrants have entered the U.S. without being apprehended, so called "gotaways."
In response to the record numbers, Abbott launched "Operation Lone Star," a state initiative that enlists the Texas National Guard and Texas Department of Public Safety to support Border Patrol. As part of this effort, the Texas Military Department placed roughly 70,000 rolls of barbed wire on the border near Eagle Pass in October, one of the most popular crossing points for migrants. Tension between state officers and federal Border Patrol agents began rising shortly after.
Border Patrol agents and National Guard troops had to regularly cut the wire to allow migrants through or free those who had gotten stuck in it. However, they often disagreed about when to cut the wire, and in some cases the Border Patrol would remove the wire unilaterally. In response, Texas sued the federal government to make the Border Patrol stop cutting the wire.
On January 10, the dispute escalated after the state of Texas seized Shelby Park, an area abutting the Rio Grande owned by the city of Eagle Pass. The Texas National Guard built fencing around the park and then denied Border Patrol access to its facilities, including a boat ramp. Border Patrol then stopped patrolling the river because it had no access to the boat ramp, and the next day a Mexican woman and two of her children drowned in the river in an area where the Border Patrol had previously been on duty.
U.S. Solicitor General Elizabeth Prelogar then filed an additional memorandum with the Supreme Court (in addition to the one about the barbed wire) that involved Texas denying access to the Border Patrol on parts of the river and to Shelby Park. On Friday, in a 5-4 ruling, the Supreme Court then vacated a lower court's ruling that barred the Border Patrol from removing wire and granted them access to all areas of the park. But Texas has continued to deny the Border Patrol access.
25 Republican governors have since issued a joint statement backing Abbott's position, which is that Article 1, Section 10, Clause 3 of the Constitution gives him the right to declare an invasion by illegal immigrants, and that the state can wage a war against them. The clause reads:
“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.”
“The federal government has broken the compact between the United States and the States,” Abbott said in his declaration. “The Executive Branch of the United States has a constitutional duty to enforce federal laws protecting States, including immigration laws on the books right now. President Biden has refused to enforce those laws and has even violated them.”
While this standoff takes place, Republicans and Democrats in the Senate are trying to hammer out a bipartisan immigration reform deal. However, former President Trump and his allies in the House have preemptively rejected the deal, based on details that were leaked from negotiations to the press.
Today, we're going to examine some arguments from the left and right about this dispute, then my take.
What the left is saying.
- The left is disturbed by the rhetoric being used by Abbott and other Republicans in the standoff, suggesting it echoes that of the Confederacy.
- Some say Abbott is advancing a flawed interpretation of the Constitution that won’t stand up to judicial scrutiny.
- Others call on Biden to respond quickly to Abbott’s challenge.
In The Daily Beast, Rotimi Adeoye argued “Texas’ border stunt is based on the same legal theory Confederate states used to secede.”
“At the crux of what’s happening at the southern border lies the question: Does the federal government have the authority to regulate access to Texas’ borders? The answer is unequivocally, yes,” Adeoye said. “Gov. Abbott’s invocation of Confederate ideology and defiance of Supreme Court precedent threatens to undermine established constitutional principles and federal powers.
“By contesting the Supreme Court’s ruling and seeking to undo the McCulloch decision, Texas risks unraveling decades of legal precedent and challenging the fundamental structure of the United States government. Texas’ border stance challenges the federal government’s authority and goes against historical precedent. It is essential to ensure that the Constitution’s principles are upheld and that the rule of law is respected as the situation unfolds. When states refuse to accept Supreme Court rulings they disagree with, it undermines and weakens the rule of law.”
In The Houston Chronicle, Stephen Vladeck criticized “Abbott's dangerous misreading of the U.S. Constitution.”
Abbott “makes an argument that’s a modern variation on one in vogue in the early 19th century: that states can ‘nullify’ those federal laws that they believe are unconstitutional. No matter how much one might sympathize with Abbott’s efforts to address current immigration problems, the power he is claiming, just like nullification itself, is utterly antithetical to the constitutional structure of our federal system in the long term — and likely will be repudiated by the Supreme Court sooner rather than later,” Vladeck said.
“If the Civil War example seems extreme, so is Abbott’s rhetoric. It may make for good politics, especially with news that congressional Republicans have backed away from reform legislation at the behest of former President Trump, who would rather run on the issue than work to solve it. But it’s very bad constitutional law,” Vladeck wrote. “And although the Supreme Court has not yet repudiated this particular argument, Abbott’s behavior may soon force its hand.”
In The Philadelphia Inquirer, Will Bunch said “Biden must federalize the Texas National Guard.”
“Abbott’s reckless, cruelty-is-the-point policies and his defiant stand are… posing the greatest threat to federal authority since the South’s ‘massive resistance’ in the 1950s and ‘60s to the Supreme Court’s landmark Brown v. Board of Education ruling that mandated school integration,” Bunch wrote. “The small-d democratic institutions that could at least ameliorate this humanitarian crisis at the southern border are failing, miserably. None more so than Congress, stymied by the GOP’s ability to thwart legislation.”
“In Eagle Pass, Biden has been presented with only two choices. The first is to back down in the face of Abbott’s defiance, not only looking weak and ineffectual but ensuring more asylum-seekers will die needlessly. The other is to be like Ike and federalize the Texas National Guard, order Abbott’s confederates to retreat from Shelby Park, remove the illegal razor wire and fencing, and resume the humane processing of undocumented refugees,” Bunch said. “If Biden is the one who backs down at Eagle Pass, then — at the risk of paraphrasing Trump — we won’t have a country anymore.”
What the right is saying.
- The right praises Abbott’s stance, arguing he has the clear moral and legal high ground.
- Some say the government is only making the problem worse when it could be helping Texas address the migrant crisis.
- Others say the Constitution allows for the exact kind of action Texas is taking.
The New York Post editorial board wrote “Joe Biden’s war with Texas’ Greg Abbott threatens a constitutional crisis.”
“Make no mistake: Texas Gov. Greg Abbott holds all the moral high cards here — and some legal ones, too. With Biden refusing to enforce immigration law and millions flooding in illegally, Texas has been utterly swamped,” the board said. “What a horrific political spectacle: Texas is looking to secure the border (which Biden now finally admits is not secure), yet the feds are aiming to block him. It’s madness (and not just because taxpayers get stuck paying for both installation and removal of the wire).”
“Abbott’s legal argument is strong, but his moral argument — about protecting the state (and the country) — is unassailable. Only perverse open-border radicals (and pols who do their bidding) still deny the border is a nightmare, with a new-record-high 300,000-plus migrants crossing in December, and needs to be secured,” the board wrote. “Of course, none of all this Sturm und Drang would be necessary if Team Biden just followed the law.”
In The Fort Worth Star-Telegram, Nicole Russell said the Supreme Court and Biden are why “Texas’ border problem just got worse.”
“Only the federal government can enforce federal immigration law. Abbott doesn’t protest this. But with so many people allowed to enter the country, it’s clear that the federal government isn’t doing enough to enforce the law. So why can’t Texas, in its sovereignty, quell the surge with law enforcement, physical barriers and other methods?,” Russell asked. “Razor wire didn’t keep migrants from entering Texas. The wire hasn’t stopped migrants from claiming asylum. Razor wire kept migrants from entering Texas illegally.”
“The border situation is complicated, perhaps far more than most people realize. But anyone — everyone — regardless of party affiliation or immigration status, should want to prioritize the nation’s security and enforce immigration laws,” Russell wrote. “The Supreme Court is right to uphold the Constitution, but in times like this, when the federal government isn’t enforcing the law, and it’s quite clear they’re not, it leaves Texas with difficult choices to make.”
In Newsweek, Josh Hammer argued “Texas is correct to defend its sovereignty from the border invasion.”
“The adjective ‘Orwellian’ can be overused in our political discourse. But how else to describe a situation in which the federal government abdicates its responsibility to secure the nation's wide-open border and then, when a state steps up to help stanch the bleeding, is told by that same federal government to stop—and, for good measure, that its efforts to help secure the border via a new razor wire barrier will be undone?,” Hammer asked.
“Texas is correct to stand its ground. First, the Supreme Court's order more narrowly permitted Border Patrol agents to remove wire; it said nothing whatsoever about Texas officials' ability to construct new wire. Second, even if there were a direct clash between Texas and the Court, Texas's reliance on an express constitutional provision to declare an ‘inva(sion)’—and thus assert its unequivocal right to secure its borders—takes precedence over a Supreme Court edict. Finally, unless one erroneously accepts the illogical (and frankly un-American) premise of judicial supremacy… then one should support the state of Texas' ability to independently interpret the Constitution for itself.”
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- I’m sympathetic to Abbott, as the situation on the border has completely deteriorated.
- Texas does not have Supreme Court precedent on its side, and I won’t be surprised if they continue to lose in court.
- Biden has to use every tool in his kit to resolve this crisis — including finding a way to work with Republican governors of border states.
On the one hand, I'm pretty sympathetic to the state of Texas. As I've written again and again, the federal government's actions on immigration have a disproportionate impact on the border states of Texas, New Mexico, Arizona, and California. What has happened under the Biden administration is totally unprecedented — CPB reported over 300,000 border encounters in December, a number that was once unfathomable for a single month. The system is being overrun, and cities as far away as New York are being impacted. We have to do something different, and Texas is trying to rock the boat.
On the other hand, as far as keeping Border Patrol agents out of Shelby Park and preventing them from cutting barbed wire, I think Texas's legal footing is pretty weak. There is now quite a bit of Supreme Court precedent that has repeatedly and consistently granted the federal government power in disputes similar to this one, including Arizona v. United States from 2012. There is currently a federal law that says Border Patrol agents can enter people's private land for the express purpose of patrolling the border to prevent illegal entry. There is also the Constitution's Supremacy Clause, which says that federal law is the "supreme" law of the land and judges in each state are bound by it. This alone undercuts Abbott's position in a meaningful way.
Biden now has two options: He can fight Texas with the power of the Supreme Court's order behind him, risking a standoff between federal and state agents. Or, he can back down, cede the moment to Abbott, and allow the Texas National Guard to pursue whatever strategy it wants along the Rio Grande.
From my viewpoint, Biden's only real choice is to exercise his authority and ensure the federal government's continued control over the border. If these legal disputes keep working their way up to the Supreme Court, so be it — I suspect the court will continue to rule in the administration’s favor. Biden backing down would set a precedent not just for how states can treat his administration, but for how they can treat all future administrations on this issue.
I say that knowing full well that Texas might have better strategies than the Biden administration does for "securing" the border, and that the involvement of state agents could very well be a good thing. But remember this: The key to the problem at the border is disorder. Our immigration system lacks sufficient leadership, resources and structure. And allowing a state official to run roughshod over the federal government, then putting state and federal law enforcement at odds with each other, is not going to bring more order — it is going to do the opposite. It will make the situation more complex, dangerous, and dysfunctional.
Texas isn't completely helpless here. As Douglas Murray pointed out in the New York Post, the simple existence of so-called "sanctuary cities" is proof that individual cities and states have some autonomy on how to navigate this issue. The state's floating barrier in the Rio Grande, for instance, appears to be on much better legal footing than its total takeover of Shelby Park. On our podcast today, Josh Hammer made a compelling case to me that Texas is well within its legal right to do what it's doing, and that the Supreme Court has erred in past rulings. I’m not sure I am totally convinced (Hammer is quoted under “What the right is saying” above), but his argument is definitely worth listening to.
Texas can also keep deploying state law enforcement throughout the region to work in concert with federal agents. It can continue to move unauthorized migrants out of Texas to other states, thus spreading its burden out more evenly across the country and ramping up political pressure on Washington, D.C., for major reform.
Instead, though, Abbott has focused on some of his weakest legal arguments. As Ian Millhiser noted, Abbot has been publicly focusing on a clause of the Constitution that actually functions as a prohibition on state actions like waging war, except in specific circumstances. In effect, Abbott is trying to use a provision of the Constitution that limits state power as an excuse to violate federal law. "This is, to put it mildly, a terrible legal argument," Millhiser said plainly.
Of all the failures of the Biden administration, I think the border situation reigns supreme. Not only have we exceeded all records of encounters and likely "gotaways" into the U.S., but the fighting between Republican governors and the federal government has sown disorder. Rather than disperse the burden, infighting has spread the crisis into various cities and states across the U.S. that are just not prepared to deal with this influx of migrants. This is caused by both the sheer number of migrants entering the country and the red state governors who unilaterally started transporting migrants out of their own states.
But, more than anything, it is a result of the Biden administration’s failure to lead. They haven't exercised executive authority in a way that has improved the situation, they haven't mustered any reforms through Congress, and they haven't been able to maintain a functioning relationship with state leaders that have an "R" next to their name. Just as the federal government’s authority in this dispute is supreme, the federal government — led by President Biden — is fundamentally atop the blame pyramid for what we are witnessing now.
This issue matters a great deal to me, and on Friday, I'm planning to write a lengthy edition on my ideas for solving the border crisis. For starters, having a functioning and well regulated immigration system is one of the keys to America's long-term success — both economically and culturally. On a personal level, I grew up living on the border in the summers and am now a property owner in West Texas, just a few miles from the Rio Grande. I've seen how the border issue impacts the country up close, from small border towns to major U.S. cities. Like nearly everything else, the issue is complex, and has a wide range of diverse perspectives — and also a wide range of possible solutions.
For now, though, Biden needs to make it clear who has authority on the border. He needs to lead on negotiations in Congress and find a way to start working with governors like Abbott, whose pleas for something different could not be more desperate.
Your questions, answered.
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Under the radar.
The Wisconsin Supreme Court asked the state elections board to respond to Dean Phillips, the Democratic nominee challenging President Joe Biden, who said he has been unlawfully left off the state's primary ballot. The Wisconsin Elections Commissions and Wisconsin Presidential Preference Selection Committee listed President Biden as the only Democratic candidate in the state's primary. The move came at the request of party leaders after a meeting in the beginning of the year, where Phillips said the party was forcing him to spend $300,000 to collect signatures through a process he says is unnecessary. The Washington Post has the story.
- 686. The number of deaths and disappearances of migrants on the U.S.-Mexico border in 2022, making it the deadliest land route for migrants worldwide, according to the International Organization for Migration.
- 2.2 million. The approximate number of migrants who crossed the U.S.-Mexico border in the first 11 months of 2023, according to new data from the U.S. Customs and Border Protection.
- 225,000. The approximate number of migrants taken into custody by U.S. Border Patrol agents in December 2023, the highest monthly total in the agency’s history.
- 50,000. The average number of migrants entering the U.S. legally who are processed by the government each month.
- 291 pounds. The amount of methamphetamine, fentanyl, cocaine, and marijuana seized by U.S. Customs and Border Protection officers over 11 days in El Paso, Texas, earlier this month.
- 35%. The percentage of U.S. voters who say immigration is the most important issue facing the country (the highest of any issue), according to a January 2024 poll from Harvard CAPS/Harris.
- 64%. The percentage of U.S. voters who say the immigration problem at the U.S.-Mexico border is getting worse.
- 68%. The percentage of U.S. voters who say the Biden administration should make it tougher to get in the U.S. illegally.
- One year ago today we wrote about the death of Tyre Nichols.
- The most clicked link in Thursday’s newsletter was Bernard Arnault becoming the world’s richest man.
- Semantics: 631 Tangle readers responded to our poll asking their thoughts on the ICJ’s ruling on Israel, which found the country violated aspects of the genocide convention but stopped short of formally declaring its actions as genocidal, with 47% saying it was mostly fair and reasonable. 1% said the court should find Israel guilty of genocide, 13% said it should recommend a ceasefire, 13% said it should not have found Israel guilty of any violations, and 21% said it should have tried Hamas for genocide instead. “Two things can be true. One can be horrified by the death count in Gaza (as well as the Hamas terrorist attack) and see it does not fit the definition of genocide,” one respondent said.
- Nothing to do with politics: The amazing 2010 introduction video for the Alaska Nanooks hockey team.
- Take the poll. What do you think of the conflict between the federal and Texas state governments? Let us know!
Have a nice day.
The Chris Kindness award is a nonprofit out of Berkeley, CA, that awards $1,000 every month to a community member for committing an act of kindness. We recently found out about the organization from Executive Director Terri Chytrowski, a Tangle reader, who wrote in to tell us about the effect the organization has had on Berkeley community members. “They have kindness on their mind. And, as a result, their own behavior starts changing. They began extending themselves more to strangers, they became kinder. That’s powerful!,” Terri said. This past month, the award was given to local high-schooler Farhat Noorzad for mentoring refugees. The Chris Kindness award has Farhat’s story, and many others.
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