Joe Biden Won't Let Texas Gov Greg Abbott Declare Actual War On Mexico
Maritime law! Break out the flags with gold fringe on 'em!
As expected, the Justice Department has followed through on its letter last week telling Texas Gov. Greg Abbott to either remove a 1000-foot border barrier made of floating orange buoys from the Rio Grande near Eagle Pass, Texas, lest the government sue Texas to make him do it. The government’s suit came at light speed after a Texas EMT’s report that the state was literally ordering troopers to push small children back into the river, as well as that a pregnant woman had miscarried when caught in barbed wire along the shoreline.
On Monday, the DOJ filed suit in federal court in Austin, saying that Abbott had violated “sections 12 and 17 of the Rivers and Harbors Appropriation Act of 1899,” which forbids obstructing the “navigable waters of the United States” without the federal government’s authorization, to say nothing of the express permission of the commissioner of river baseball.
It should be a pretty open and shut case, really. The Rio Grande is a navigable water of the US, the barrier obstructs it, and Abbott never bothered requesting permission from the relevant authority, the Army Corps of Engineers, so get that sucker out of there. But in a twist to the story we hadn’t been aware of previously, Slate’s Mark Joseph Stern points out that the DOJ lawsuit should neatly demolish not only those nasty buoys (oh you nasty buoys!), but also a devious little scheme to subvert the Constitution that Abbott hoped to pursue all the way to the Supreme Court.
You see, Greg Abbott, like lots of Republican governors, really can’t stand that the executive branch has control over immigration policy and border security, a principle that the Supreme Court just bloody upheld in June. So to get around that, Abbott, apparently with the advice of actual lawyers who should know better, decided to pursue an even more cockamamie legal theory: Since undocumented immigration is an “invasion” of border states, and thereby an act of war, maybe the US Constitution gives the states the power to take immigration enforcement into their own hands if the president, as Commander in Chief, doesn’t stop the “invaders.”
Yeah, this is the kind of legal thinking you get from people who think the Second Amendment enshrines the right to shoot leaders you think are tyrants, that state legislatures’ election rules aren’t subject to judicial review, or that the vice president of the USA has the power to throw out election results. It’s twaddle, flummery, and poppycock, is what it is.
Stern explains the bizarre theory, which Abbott invoked in a letter he sent to President Biden last November:
First, he asserted that Biden had failed to “honor” the so-called invasion clause, which says that the federal government “shall protect each [state] against Invasion.” Second, he wrote that he would invoke his power under Article 1, Section 10, which says, “No State shall, without the consent of Congress, … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” Biden’s purported refusal to enforce immigration law, he reasoned, had placed Texas in “imminent danger,” giving the governor power to “engage in war.” (A war against Mexico? Cartels? Migrants themselves? Abbott did not clarify.)
This is pure hooey. No matter how many times people say it on Fox News, undocumented immigrants, even in large numbers, are not an invading military force. Sincere belief in a metaphor doesn’t change that. And for all Abbott’s invocation of his alleged war powers if the government fails to stop the “invasion,” all the actions he demanded Biden take to “defend” Texas were distinctly civilian, like imprisoning or deporting everyone, ending the right to asylum, and building WALL. He didn’t even ask for a single strafing run by an A-10, although we suspect the idea occurred to him.
In any case, no, the president is in charge of the armed forces and even the Trump Court has been quite clear on this. Trivia fans may appreciate that Abbott’s specious constitutional claims originated with a 2012 dissent by Antonin Scalia, which wasn’t joined by any other justices, in which the Great Originalist decided that sure, states can use force to “protect their territory,” at least when baring their teeth and flinging feces doesn’t work.
Abbott apparently thought this was such a brilliant argument that he was looking forward to taking it “all the way to the United States Supreme Court,” as he said on Fox News, adding, “Texas is defending its sovereignty and its constitutional right to secure the border, our state and our country.” Which in this case he has not got.
In any case, the DOJ lawsuit filed Monday doesn’t include any of that grand constitutional twaddle, sticking instead to the facts, ma’am: Texas is in violation of the 1899 law and didn’t bother asking the proper agency for permission, now take your buoys and go. As Stern notes, the DOJ has asked that the case be
heard by the same judge who has already been assigned to separate litigation against the barrier brought by a canoe rental company. That judge is Robert Pitman, a Barack Obama appointee, who is likelier than most Texas judges to apply the actual law.
If Abbott loses, he would appeal to the loonies at the Fifth Circuit Court of Appeals, whose Bizarroland judges may give his buoys some breathing room, but Stern is as optimistic as anyone can be when considering what might happen in the Supreme Court Wood Chipper, noting that John Roberts and Brett Kavanaugh have
consistently supported federal supremacy over national defense while looking skeptically at red states’ efforts to seize control over border policy. They need not even invoke any lofty principles to reach the right result: The Rivers and Harbors Appropriation Act does all the work—with a crucial assist from Abbott’s awful lawyering.
That makes all kinds of sense to us, although we should add that it doesn’t account for the possibility that if it gets to the Supremes, the suit might be heard on Opposites Day.
[Slate / United States v. Abbott / Abbott letter to Biden / Image generated by DreamStudio AI]
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In addition to pissing off Mexico, our federal government, the Army Corps of Engineers, and people troubled by a conscience, Abbott stepped on private property rights by just stringing razor wire and telling distraught landholders to fuck off.
A fair number of Texans might be hearing John Wayne in their heads, saying, “They did what? They did WHAT?”
Never piss off the John Waynes living in the heads of Texans, pilgrim.
🎶 We shall gather at the river,
Killing children as they ford
Snagging mother's on the barbed wire
Done in the name of the Lord.
Shall we gather at the river
The beautiful, beautiful river.
Yes let's gather at the river
Where cruelty is its own reward.🎶