Illegal Migration Forcing U.S. Constitutional Crisis

You wouldn’t know it from the lack of attention in the European and American media, but the United States is moving quickly toward a major constitutional crisis. The cause? The massive number of illegal migrants crossing the U.S.-Mexico border, which Washington is doing virtually nothing to stop.

Since 2021, the U.S. Government has caught 6 million illegal migrants have crossing illegally into America from Mexico, which shares a border with Texas. In December alone, a record high of 302,000 migrants crossed the Rio Grande—more than the number of migrants who entered Europe illegally in all of 2023.

How immense is the crisis? Imagine if every man, woman, and child in Denmark emigrated to America over the last three years. Or think of the combined populations of Budapest, Prague, and Rome moving to the U.S. since Joe Biden took office. Most of this migrant tsunami has fallen on Texas, whose 2000 km border with Mexico accounts for half the length of the frontier between the U.S. and its southern neighbor.

For decades Texas has begged Washington for help with the migration crisis, to no avail. As migration reached new highs over the past two years, border state governors, especially Republican Greg Abbott of Texas, tried creative stunts to compel states in the country’s northern region to pay attention. Liberal cities like New York and Chicago declared themselves to be ‘sanctuary cities,’ meaning that city officials would not help federal immigration authorities apprehend illegal migrants.

Gov. Abbott and others have been testing the Democratic cities’ conspicuous compassion by shipping busloads of illegal migrants to the north. Housing has run out and migrants are straining city budgets—and residents’ tempers.

New York City, for example, has already received 100,000 illegal migrants, with more on the way, and has plans to spend $12 billion over the next two years to deal with them. When the city closed a public school temporarily to house migrants during a cold snap, parents sounded their fury. In Chicago, crowds of outraged black residents have demanded that the city’s black mayor turn back the migrants. The city faces seven lawsuits over its migrant policy, three of them by black citizens angry that Chicago is spending scarce resources on foreigners there illegally instead of on its own native poor.

This week marked a major turning point in the crisis. Texas Gov. Abbott has been trying to deter migrants by ordering Texas National Guardsmen to unspool razor wire at the border. The Biden Administration opposes the strategy as cruel, and ordered federal Border Patrol agents to cut the razor wire in the border town of Eagle Pass. On Monday, in a 5-4 decision, the U.S. Supreme Court, sided with the administration, ruling that controlling the frontier is a federal responsibility, not a state one.

On Wednesday, Gov. Abbott fired a red-hot cannonball at the federal government. In a formal statement, the Texas governor “The federal government has broken the compact between the United States and the States,” he declared. Because President Biden has consistently refused to control the border, said Abbott, Texas has a constitutional right to defend itself from this “invasion.” On Thursday, Texas agents rolled out more razor wire along the border.

The Abbott letter appears to defy the Supreme Court’s ruling, but won the enthusiastic support of a number of Republican governors, and the Republican speaker of the House of Representatives, who pledged the House majority’s support for Texas in this standoff.

As of this writing, President Biden has not responded to the shocking challenge to his authority. It’s not hard to see why. Recent polling shows that voters see immigration as the most important issue facing the country—and they do not side with the president. Strong majorities of Republicans and independent voters believe that the situation at the border is getting worse, and that they want to see Washington act more strongly to stop it. Even 50% of Democrats want tougher border enforcement.

President Biden faces a re-election campaign with already dismal approval ratings. Moreover, his opponent is almost certain to be Donald Trump, for whom illegal migration is a signature issue.

Beyond the politics, the judicial and constitutional questions are genuinely worrying. In the U.S., state National Guards are militias under the authority of both federal and state governments, either of which can mobilize them for various needs. States call out the National Guard to help with disaster relief, or, less often, to restore order. The federal government has deployed National Guard members abroad to combat theaters, though usually in logistics and other support roles for soldiers.

The Texas National Guardsmen patrolling the border are operating under Gov. Abbott’s authority. If President Biden decides to “federalize” them, the Guardsmen would be expected to obey the president, not the governor. In this case, Biden would have to invoke the Insurrection Act, a rarely-used law that grants the U.S. president the right to send troops (including federalized National Guardsmen) to enforce the law domestically.

During the Civil Rights era, several presidents used the Insurrection Act to compel obstreperous Southern states to enforce civil rights laws. The last time it was used was in 1992, when California’s governor appealed to President George H.W. Bush for help in controlling the Rodney King riots.

If Biden were to federalize the Texas National Guard under the Insurrection Act, he would in effect declare that the Texans were guilty of insurrection for protecting their own border—the national border—from illegal invasion. If that happens, then the situation could become extremely volatile. Would Texas Guardsmen obey the president, or the governor? What would happen if the twenty-five GOP governors who have publicly pledged support for Texas in its fight with the Biden administration send contingents of their own National Guards to the Texas border in support of Abbott? Would those Guardsmen obey the president—which is to say, the law?

Or would they consider a law that effectively prevents them from stopping a de facto foreign invasion to be unjust? No less an American hero than Martin Luther King Jr., in his “Letter From Birmingham Jail,” said that “one has a moral responsibility to disobey unjust laws.” Yet to successfully defy a lawful order by the U.S. president and the Supreme Court would seriously destabilize the American system of government.

And that’s before we consider how ordinary citizens—especially Texans—would react to the sight of their national government stopping Texas Guardsmen from defending America against this invasion. Texans are unique among Americans for their sense of identity, and their willingness to fight for it. For old-school Texans, “Remember the Alamo!” is both a statement of Texas identity and a call to arms. The Alamo is the small San Antonio fort where, during the Texas Revolution in 1836, a group of “Texian” resisters became folk heroes for holding out against a Mexican army siege that eventually took their lives. How many Texans remember the Alamo today? Washington should not want to find out.

By the time U.S. and European media notice the story, they will no doubt bring up the Civil Rights clashes in which Presidents Eisenhower, Kennedy, and Johnson had to federalize state Guards to stop segregationists. Don’t be fooled by the comparison. Those former presidents nationalized the state Guards to guarantee equal treatment for black Americans after federal legislation nullified apartheid state laws. In this case, Biden would be activating the Insurrection Act to stop the Texas Guard from doing what the U.S. Border Patrol will not: prevent migrants from entering the U.S. illegally.

Put another way, Biden would be acting to protect lawbreakers, not law enforcers.

The drama on the Texas border will surely be watched closely by Europeans struggling with their own migration crisis. In 2012, the European Court of Human Rights ruled that Italy had broken the law in returning migrants and asylum seekers intercepted in the Mediterranean. On Wednesday, the ECHR ruled that Greece had violated the human rights of a Syrian asylum seeker killed at sea by coast guard gunfire. Since 2015, Greece has faced wave after wave of migrants, outstripping its capacity to support them.

Europeans won’t ignore the outcome of Texas’s bold defiance of Washington, which has sat on its hands for many years while border states have borne the brunt of illegal migration. What if national governments, fed up with out-of-control migration and the legal inability to take meaningful action to stop the invasions, simply decide, à la Texas, to refuse to obey court rulings? What if national governments, and majorities within those countries, conclude that human rights treaties and the like are not national suicide pacts?

European elections are coming in June. European voters cannot be expected to remember the Alamo. But depending on how this high-stakes crisis over the U.S. border plays out, the example fed-up Texas patriots like Gov. Greg Abbott will not be forgotten.