- Andrzej Kohut
Texas Secession?
"The United States is threatened with a new secessionist war," "Texas secessionists are getting emboldened". - one can easily find similarly sensational headlines in the US infosphere lately. Emotions are being heated by a progressive dispute between the U.S. federal government and the state of Texas over methods to protect the country's southern border from a growing influx of undocumented immigrants. Texas is accusing the U.S. government of failing in its constitutional duty to protect state security and is taking matters into its own hands. Does it really have the right to do so? What could be the consequences of this dispute?
The frontier of prosperity
The border between the United States and Mexico is more than 3,100 kilometres or 2000 miles long. More than a thousand kilometers is the land border, protected by several hundred kilometers of fences, barriers and walls, including those erected under Donald Trump. Two-thirds of the borderline is the Rio Grande River, separating Mexico from the state of Texas. It is through this river that most immigrants enter the United States. Many of them are staying. In 2021, the Pew Research Center revealed that Texas was the second most populated state after California by undocumented immigrants - there were more than 1.5 million of them. It's not hard to guess, then, that when the immigration crisis took a turn for the worse in recent years, it was Texas that became one of the states hardest hit. Meanwhile, the size of the migrant wave continues to grow.
In 2016, when Donald Trump was vying for the presidency, he promised to build a wall. Thus, the issue of illegal immigration became one of the central themes of the election campaign. However, the middle of the second decade of the 21st century was not the peak of the US immigration crisis. In fact, it was quite the opposite. More attempts to cross the border illegally were recorded by the American services in the early 2000s. The turning point was the financial crisis of 2008 and its consequences for the American economy. The United States was no longer such an attractive destination for migration, and the Border Patrol's data clearly shows this. When Trump came to power, the number of attempted illegal border crossings was less than fifty thousand per month. In the first months of his presidency it dropped even further - perhaps the announcements of the construction of the wall and other solutions that Trump was proposing reached potential immigrants.
But, record low unemployment and rising migration pressures in countries such as El Salvador, Guatemala and Honduras have caused the trend to reverse. In 2018 and 2019, the number of illegal border crossings began to rise rapidly again. This trend was only stopped by the pandemic. Economic uncertainty, anxiety over the spread of the disease and fear of new restrictions began to limit the flow of new immigrants effectively. At the same time, Joe Biden won the 2020 election. During the election campaign, he criticised some elements of Trump's migration policies - such as separating parents and children or forcing asylum seekers to remain in Mexico until their application is processed. He argued that these are inhumane behaviours. That's why, in the very first weeks of his presidency, Biden halted construction of the great wall and suspended the controversial remain in Mexico rule (which, however, led to a years-long court battle). Biden did, however, keep in place restrictions put in place at the time of the pandemic, allowing for the immediate deportation of undocumented immigrants for health security reasons. These were not lifted until May 2023.
This is a good indication of the challenge the Biden administration faced. On the one hand, the president's promises have led to expectations of a more humane immigration policy. On the other hand, Biden's self-image of being more lenient toward undocumented immigrants, combined with the post-pandemic opening of the borders and pre-pandemic migratory pressures already in place, resulted in a record influx of new immigrants. For a crisis of this magnitude, the Biden administration had no adequate prescription. This was grist to the mill for the Republicans. Those quickly moved to criticize the new administration's actions, with Republican Texas Governor Greg Abbott coming to the fore. He quickly decided to take matters into his own hands.
Back in March 2021, less than two months after President Biden's inauguration, Abbott announced the launch of Operation Lone Star. As a result, the Texas National Guard was directed to guard the border and detain immigrants. The first floating barriers appeared on the Rio Grande. The governor also announced the construction of land barriers, primarily razor wire. The entanglements were erected on land belonging to the state, as well as on private plots - with the consent of the owners. Abbott also launched a campaign to send immigrants awaiting asylum applications by buses deep into the country - to the Democrat-ruled big cities of New York, Chicago or the capital, Washington. The goal was simple - for the residents of these cities and their authorities to also feel the brunt of the immigration crisis. This put even more pressure on the Biden administration.
Yet, the Lone Star has become a frequent target of criticism - mainly from humanitarian organizations. They pointed out that the erected barriers - both floating and land-based - make it difficult for migrants to cross the dangerous river, and limit the ability of border guards to help those in danger. They hinted that these people have the right to apply for asylum. Meanwhile, as a result of the obstacles erected, migrants were often in mortal danger. The risk of drowning when crossing the Rio Grande was increasing. As a result, border guards - which is the executive body of the federal government - repeatedly cut through entanglements and removed obstacles erected by the Texas National Guard to bring relief. Here, we come to the crux of the dispute.
Federation vs State
On that note - in October 2023, Texas sued the federal government, claiming that border patrol agents were not only destroying Texas property, but also harming the state's ability to deter attempts to cross the border illegally. What did the court rule? Initially, it ordered the Border Patrol to temporarily refrain from destroying the barriers, but in late November it issued a ruling unfavourable to Texas. The case went to another instance, and in early December the appeals court again banned the destruction of the wire until the case was examined.
However, the conflict did not end there. Back in late December, Governor Abbott signed into law a bill introducing the ability of police to arrest suspected illegal border crossers throughout the state. The new law also allows judges to rule on immediate deportation. The federal government again moved to counter. The Biden administration declared the law unconstitutional and took the matter to court.
At this point we turn to very current events, because just two weeks later, after the case was taken to court - on January 12, 2024 - a critical incident occurred. A woman and her two children drown in the Rio Grande. The Biden administration argues that border guards were able to attempt to provide assistance. But, it was prevented from doing so by entanglements and the attitude of the national guard, which refused to allow border guard agents on the scene. The area around the town of Eagle Pass, Texas, suddenly became the centre of media attention.
A few days later, the government sent a request to the Supreme Court to allow the border guards to remove the barriers. The Supreme Court is dominated by conservatives. Nevertheless, a decision favourable to the Biden administration falls. Chief Justice John Roberts, as well as Trump's nominee, Justice Amy Coney Barrett, speaks in favor of the possibility of the federal service removing the wire.
Texas, however, is not about to give way. "This is not over. Texas' razor wire is an effective deterrent to the illegal crossings Biden encourages. I will continue to defend Texas' constitutional authority to secure the border and prevent the Biden Admin from destroying our property." Governor Greg Abbott wrote on X.
Speaking of Texas' constitutional right to defend its borders, Abbott cites a provision from Article I of the US Constitution: "No State shall, without the Consent of Congress ... 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.." According to the Texas governor, the current influx of undocumented immigrants is an "invasion" against which Texas has the right to defend itself under this provision. He also points out that the federal government has not fulfilled its constitutional duty under Article IV of the Constitution to ensure that every state has a defence against invasion.
Abbott's position was supported by almost all Republican governors. In a special statement, they also say that Texas has a constitutional right to defend its own borders. However, this interpretation of the U.S. Constitution raises serious questions. The U.S. Constitution was written in the late 18th century. The newly formed state had a small army that had to protect a land border of more than 2,000 kilometres. It therefore seemed logical to allow state militias to defend themselves before the regular army could respond. Nonetheless, it is clear from this assumption that the state forces were intended to supplement, not replace, federal forces.
A state within a state?
Abbott's actions lead to a fundamental question: can a US state conduct its own immigration policy while ignoring Washington, D.C? What is actually the relationship between the individual states and Washington?
Note the sentence that appeared in the letter of the governors supporting the Texas action: "the Biden Administration has abdicated its constitutional compact duties to the states, Texas has every legal justification to protect the sovereignty of our states and our nation". The authors thus refer to the theory assuming that the United States came into existence as a result of some compact between the states, under which they relinquished some of their powers to the federal government. The consequence of such an assumption would be that any of the states could leave this pact if the federal government violated the terms of the agreement. Not surprisingly, it was this theory that served the southern states to declare secession in the 19th century. Adopting this theory would also have meant that each state could ignore the federal government's laws, citing their contradiction with the concluded "agreement." Before the Civil War, this concept was extremely popular and was called "nullification."
The arguments put forward by Texas resonate with the theory of nullification and the assumption that what binds the states into a single state is solely a concluded agreement. Texas' history reinforces the belief of some residents that this is indeed the case. In 1836, Texas seceded from Mexico in a rebellion that became known as the Texas Revolution. The Republic of Texas was formed, and nine years later it was incorporated into the US as another state. The annexation was preceded by negotiations between the US government and the government of the independent republic. The possibility of Texas seceding, known as “TEXIT”, is sometimes alluded to by conservative politicians in the state. In 2022, Texas Republicans proposed a referendum in which the state's citizens would decide whether it should become an independent state again. There has even been a proposal to hold the referendum on the occasion of the 2024 elections. Such an initiative would assume that there is a legal path that would allow Texas to leave the Union.
However, the Supreme Court decided the issue of Texas's possible peaceful secession back in the 19th century. In 1869, in the Texas vs. White case, the justices ruled that by joining the Union, Texas had "entered into an indissoluble union." Judge Salmon Chase wrote: "The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the other States.." And since revolution is itself illegal, the only remaining gateway would be the consent of all the states. Conservative Justice Antonin Scalia once commented that: "If the Civil War resolved any constitutional question, it is the question of the lack of a right of secession." Paraphrasing President Abraham Lincoln’s inaugural speech: "The union of these states is perpetual, according to the Constitution. The United States does not form a pact, but is a country united by a national fabric."
Texas therefore cannot peacefully and legally declare itself an independent state. The theory of nullification, which assumes that a state could ignore government policies in Washington if it found them unconstitutional, was debunked even before the Civil War. The Supreme Court's ruling in the Arizona vs. United States case leaves no illusion that immigration policy and its enforcement are within the federal government's authority. Even proving that the unprecedented number of undocumented immigrants trying to cross the border is indeed an invasion under U.S. law could be challenging.
Thus, it seems likely that any litigation will end to the disadvantage of Texas. So what is the purpose of Governor Abbott's actions? Besides the obvious one: he is looking for ways to protect the border and reduce the influx of new immigrants by any means available, but there may also be a political purpose. The immigration crisis poses a very serious image problem for the Biden administration. Polls show that voters trust Trump more on immigration. For Republicans, this could provide excellent political fuel in the upcoming election campaign. Abbott may therefore be playing on the escalation of the current tension between the federal government and Texas to make the issue get even more media exposure. Americans are expected to see that it is the Republican governor who does not hesitate to reach for harsh measures, while the Biden administration is actually weakening border security.
At the same time, immigration law reform is being debated in the US Congress. Changes in this area have become a Republican prerequisite for passing another package to allow funding for aid to the struggling Ukraine. Negotiations between the two parties in the Senate have been going on for weeks, and we should know the outcome soon. However, Republican congressmen are already announcing that they will not support the Senate deal and are calling on Democrats to make even more far-reaching concessions. Donald Trump, meanwhile, says he will do everything to prevent the agreement from going into effect, and will deal with the crisis himself once he becomes president. The goal seems similar: a prolonged immigration crisis will work against Biden.
The conflict between Texas and the federal government may continue until the November elections. But, it will not result in Texas declaring independence or a new war of secession. Instead, the conflict will be a source of additional political tension nationwide. It also creates perfect conditions for disinformation and attempts by the Russian Federation and other state actors to destabilise the situation in the United States.
