Ulysses S. Grant once said that the Confederate cause, the defense of chattel slavery, was “one of the worst for which a people ever fought, and one for which there was the least excuse.” Texas’s embrace of neo-secessionist rhetoric in defense of letting children drown in the Rio Grande belongs somewhere on that same list.
Texas Governor Greg Abbott is engaged in a number of legal battles with the Biden administration over immigration. One of them involves Abbott ordering the Texas National Guard to set up razor wire and floating barriers in an effort to deter migrants. The federal government argues that those barriers have also blocked Border Patrol from being able to arrest and process migrants in accordance with federal law. Earlier this month, a woman and two children drowned in the Rio Grande, the river that runs along the border with Mexico. A short time later, when Border Patrol was alerted to two other migrants in distress, national guardsmen reportedly prevented federal agents from reaching them. In 2023, the Houston Chronicle reported that a Department of Public Safety trooper wrote to his supervisor that officers were told “to push small children and nursing babies back into the Rio Grande, and have been told not to give water to asylum seekers even in extreme heat.”
After the Supreme Court sided with the Biden administration last week, lifting a lower-court order that prevented Border Patrol from removing the razor wire, Abbott issued a bizarre and defiant neo-Confederate statement arguing that “the federal government has broken the compact between the United States and the States” by “refusing” to enforce immigration laws. The letter echoes the language of Texas’s declaration of secession, which, although mostly focused on defending slavery, also insisted that Texas had been betrayed by a federal government that, “under the control of these our unnatural and sectional enemies, has for years almost entirely failed to protect the lives and property of the people of Texas against the Indian savages on our border, and more recently against the murderous forays of banditti from the neighboring territory of Mexico.”
The Civil War settled this question; the union is perpetual, the federal government is sovereign, and states do not get to defy federal law simply because they don’t like when their preferred candidates lose the presidency. Perhaps the most significant through line between these two statements is the assertion that states are entitled to ignore the Constitution and the federal government if the rival party wins elections.
Abbott’s neo-secessionist bluster, cheered on by GOP governors and Republicans in Washington, including House Speaker Mike Johnson, has set up a confrontation with the federal government over immigration policy. “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,” Donald Trump wrote on Thursday. There’s not much evidence Abbott’s stunts have been effective at all—as the Texas Tribune reported, his administration have “provided little proof to substantiate” wild claims about stopping drugs and crime, and have fought public-records requests investigating its boasts. My colleague Jerusalem Demsas wrote earlier this month, “If Abbott’s show of force is supposed to deter would-be immigrants, it doesn’t seem to be working.” As with terrorism or crime however, for some people the metric of success for a particular policy on immigration is not whether it fixes the problem but whether it is sufficiently cruel.
There are many factors that led to this point. One is the reigning Republican ideology of Trumpism, which holds that only conservative electoral victories, conservative laws, and conservative governments are legitimate and must be obeyed—the ideology that led a mob to ransack the Capitol to overturn an election. Another is the steady drumbeat of catastrophizing right-wing propaganda about the recent rise in migrants at the border, which seeks to validate extreme responses, including violence and lawlessness. But even accounting for those two elements, the most significant proximate reason for Abbott’s response may be that four Supreme Court justices sent Abbott an implicit message that they agreed with him.
When the Court sided with the Biden administration, it was a 5–4 split, with Justices John Roberts and Amy Coney Barrett joining the three Democratic appointees. This should have been a unanimous ruling; for more than a century, the Supreme Court has held that the federal government has jurisdiction over immigration law in most cases and that the states cannot usurp that jurisdiction just because they disapprove of federal policy. Abbott is now thumbing his nose at the federal government, and by extension the authority of the high court itself, and four Republican appointees—Brett Kavanaugh, Clarence Thomas, Samuel Alito, and Neil Gorsuch—are saying: Go right ahead.
Although the justices like to present themselves as detached arbiters of the law, like most other conservatives, these justices seem to have been inundated with right-wing propaganda. They frequently—though not always—adjust their jurisprudence to fit the subjects of conservative outrage. At the moment, one such subject is the myth that illegal immigration is rising because the Biden administration has been too lenient.
What Republicans read, hear, and see in conservative media is a slightly sanitized version of the nonsensical white-supremacist “Great Replacement” conspiracy theory, in which the Biden administration is deliberately allowing in migrants so that they can vote for Democrats, despite the fact that undocumented immigrants, including those temporarily allowed to stay in the U.S., cannot vote. A 2022 NPR/Ipsos poll showed that Republicans “who get their news from Fox News and conservative media were more likely to believe false or misleading narratives,” and “were also more likely to believe that these claims were ‘completely true.’” Conservatives read Abbott’s bombast as justifiable because they are hearing it through the prism of propaganda telling them that people wanting to leave poor or violence-plagued countries for rich ones are part of a secret plot to harm them.
There has, in fact, been a large increase in the number of migrants, and their arrival is straining the resources and infrastructure of border communities and, to some extent, cities elsewhere. But illegal immigration is rising because the U.S. economy is unusually strong compared with those of other Western nations, owing to the massive fiscal response to the coronavirus pandemic and the Federal Reserve’s success in bringing down inflation without a corresponding rise in unemployment. A land of opportunity will draw people seeking opportunity, especially people in desperate situations in their own countries.
One of the maddening and self-contradictory aspects of conservative propaganda on this issue is that Republicans frequently cite metrics that indicate just how closed the border is, as if they demonstrated the opposite. Earlier this month, House Republican Oversight Committee Chair James Comer released a statement condemning Biden’s “open border policies” while announcing that “Fiscal Year 2022 set records for the number of arrests of illegal border crossers, the number of migrants who died making the journey, the number of dangerous narcotics seized, and even the number of suspected terrorists arrested trying to illegally cross the border.”
The reason that migrants are being arrested and dying on the way, and that drugs are being seized, is that the border is not open. That migrants are seeking to enter the U.S. is presented in and of itself as evidence that the law is not being enforced, but they are drawn by America’s prosperity. If there was no desire to come here at all, that would indicate a far more serious problem: America is no longer the kind of place people all over the world aspire to live in.
The Biden administration has not been as harsh or lawless as the Trump administration, and it has prioritized deporting undocumented immigrants who cross illegally and those with criminal records. Nevertheless, it has continued an enforcement-heavy approach, which means that the record numbers of migrants have been met with large numbers of deportations. It has narrowed the ability of migrants to apply for asylum if they enter illegally and worked with countries in Central America to slow migration. The administration has shown itself willing to negotiate with Republicans over stricter immigration policies—potentially even reviving some Trump-era practices that Democrats once rightly denounced as inhumane.
I do not believe these harsher enforcement measures would stop migration—short of truly monstrous methods, a better life for one’s children will always be worth the risk for some—but Biden is willing to give Republicans changes to the law they say they want. What they really want however, is to be able to falsely accuse the Biden administration of allowing an “invasion” of migrants they claim he could halt at any time.
Republicans have refused to bargain with Biden on greater immigration enforcement, because they hope that the issue will bolster Trump at the polls in November. Trump has told GOP lawmakers that he does not want the problem to be solved, because he wants to run on it. “The fact that he would communicate to Republican senators and congresspeople that he doesn’t want us to solve the border problem because he wants to blame Biden for it is really appalling,” Republican Senator Mitt Romney of Utah told reporters.
The four justices’ little act of sympathy with Abbott’s antics has created a problem for the Court. If states can openly defy Supreme Court orders, then the justices no longer have influence. All of the justices grasped this dilemma last September, when they smacked down an attempt by Alabama Republicans to refuse to follow a Supreme Court decision on the Voting Rights Act. Abbott’s reaction should give them some perspective: Their decision was not merely symbolic; it undermines their own power and legitimacy.
Conservatives may believe that they are the only ones entitled to play constitutional hardball and ignore the law if they don’t feel like following it. But the more the Supreme Court allows Republican politicians and GOP-run states to get away with defying the law, the less obligated their Democratic counterparts will feel to follow their dictates. And at that point, they won’t have any power at all.