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What’s really behind the border showdown on the Rio Grande?

Texas Department of Public Safety officers guard an entrance to Shelby Park in Eagle Pass, Texas (© 2024 Sam Owens / San Antonio Express-News)
Texas Department of Public Safety officers guard an entrance to Shelby Park in Eagle Pass, Texas (© 2024 Sam Owens / San Antonio Express-News)

At a park on the banks of the Rio Grande, in Eagle Pass, Texas, National Guard soldiers under the direction of the state are facing off against federal troops in a power struggle that has profound constitutional implications.

For the first time in nearly 70 years, a state governor – in this case, Greg Abbott of Texas – is defying the authority of the federal government not just in words, but with the implication of force.

In the past week, under Mr Abbott’s orders, Texas National Guard troops have blocked federal Border Patrol agents from accessing a stretch of the US-Mexico border that has seen high numbers of illegal crossings, ostensibly so his forces can better secure the border with razor wire and other infrastructure.

Those troops have defied a Supreme Court order allowing federal Border Patrol agents to enter the area and dismantle the wire, which the Biden administration has argued is dangerous and prevents them from helping migrants in distress.

It may sound like a potentially dangerous, if not slightly absurd bureaucratic nightmare, but at the root of this standoff is a disagreement about the US constitution, and who ultimately has the responsibility to protect and govern the country’s borders.

On the one side, Republican states believe the Biden administration is not doing enough to prevent illegal crossings into the US and have taken aggressive and potentially dangerous measures to do so in its place.

The Biden administration, meanwhile, has asserted the government’s constitutional right to regulate immigration and argued that preventing Border Patrol agents from accessing the area imperils the lives of migrants trying to cross the river. The Department of Homeland Security noted the case of a mother and her two children who drowned while trying to cross where Mr Abbotts’ fortifications had been placed near Shelby Park.

Former president Donald Trump waded into the dispute on Thursday, accusing President Joe Biden of “fighting to tie the hands of Governor Abbott and the State of Texas” and calling on other states to send their troops to the border to assist Texas.

“We encourage all willing States to deploy their guards to Texas to prevent the entry of Illegals, and to remove them back across the Border,” he wrote on Truth Social.

Mr Abbott, in forcing a showdown on the Rio Grande, hopes he can persuade the Supreme Court to consider his argument that states have a right to play a greater role in protecting America’s national borders. If he wins, it would represent a seismic shift in how US borders are controlled.

David Coale, a constitutional lawyer from Texas who has followed the border fracas closely, said the dispute in Eagle Pass is part of a larger political battle.

“There’s more here than just a petulant governor,” he told The Independent. “It’s a broad strategy to change the balance of federal-state power, just like the long campaign to overturn Roe v Wade.”

Mr Coale compared the crisis on the border to the showdown between Dwight D Eisenhower and the state of Arkansas over school desegregation in 1957. Then, as today, federal troops were sent to enforce the US government’s authority.

“You have a federal force and state force colliding with each other. That was a very difficult time. Those were not great moments in our nation’s history. To see that happening again is unfortunate,” he said.

Mr Abbott, laying out his justification in a statement on Wednesday that invoked the constitution’s authors Alexander Hamilton and James Madison, argued that President Biden has “refused to enforce” laws preventing illegal immigrants from entering the US, and claims he thus his state has the “constitutional authority to defend itself”.

The White House has described Mr Abbott’s efforts to fortify the border as “cruel, inhumane and dangerous,” while the Department of Homeland Security has said Mr Abbott’s actions “conflict with the authority and duties of Border Patrol under federal law” and “improperly seek to regulate the federal government”.

The Supreme Court has already considered the question of state versus federal power about the border. In 2012, the court partially struck down an anti-immigrant state law in Arizona — but upheld a provision allowing police to order anyone they suspect of being undocumented to turn over their papers. In essence, it ruled in favour of the federal government.

Today, the Supreme Court is much more conservative than it was in 2012. Mr Abbott may believe he has a shot at a different outcome this time.

But in the Texas case – much like with Arizona – the federal government will almost certainly get the last word, said Richard Albert, a constitutional law professor at the University of Texas.

“Under the US constitution, the federal government has the power to regulate immigration – period,” Mr Albert said. “So, what that means is that it’s unconstitutional for a state to enact a law or to engage in conduct that interferes with the federal government’s immigration regulations or operations.”

However, there could be one narrow path to victory for Abbott.

“If Texas can show that the federal government has completely abdicated its constitutional responsibility to regulate immigration, then Texas might have a chance at the Supreme Court,” Mr Albert said. “If it ever gets to that point – but that is a longshot.”

In the meantime, Republican politicians have begun to rally around Mr Abbott and cast the standoff as something akin to a civil war.

“The feds are staging a civil war, and Texas should stand their ground,” Rep Clay Higgins, a GOP congressman from Louisiana, said following the Supreme Court decision.

Republican congressman Chip Roy encouraged officials in his home state of Texas to ignore the Supreme Court ruling entirely.

“This opinion is unconscionable and Texas should ignore it on behalf of the [Border Patrol Union] agents who will be put in a worse position by the opinion and the Biden administration’s policies,” Mr Roy wrote on X on Monday.

Ron DeSantis, the governor of Florida who earlier this week dropped out of the presidential race, said in a video that it was “nonsense what Biden is doing”.

“Texas has every right to stand its ground,” Mr DeSantis said.

Adding fuel to the fire, the Texas National Guard issued a blistering statement on Wednesday vowing to “protect the sovereignty of our State” as its troops were filmed adding more razor wire to the contested area in Eagle Pass.

“The Texas Military Department continues to hold the line in Shelby Park to deter and prevent unlawful entry into the State of Texas. We remain resolute in our actions to secure our border, preserve the rule of law, and protect the sovereignty of our State,” the Texas National Guard said in a statement.

Some Democrats, meanwhile, have urged Mr Biden to federalise the Texas National Guard.

“Governor Greg Abbott is using the Texas National Guard to obstruct and create chaos at the border. If Abbott is defying yesterday’s Supreme Court ruling, [Biden] needs to establish sole federal control of the Texas National Guard now,” Joaquin Castro, a Democratic congressman from Texas, wrote.

Mr Coale said he wasn’t expecting a gunfight at the OK Corral, but the standoff between two armed groups each with a different interpretation of the US Constitution does have its dangers.

“You do have a situation fermenting there where you have armed law enforcement officers on either side of the contentious issue. It’s dangerous. I don’t think anyone thinks violence is gonna break out tomorrow, but somebody could get shot for sure,” he said.

And in the courts, Mr Albert doesn’t expect Texas will come out on top.

‘To me, it’s quite clear that there’s a right side and a wrong side in terms of the legal arguments here,” he said. “Which means that if this dispute reaches the Supreme Court of the United States, the federal government is likely to win.”