Politics / January 30, 2024

Texas Is Spoiling for a Civil War

As Governor Greg Abbott escalates his border fight with the Biden administration, he is sounding a lot like an old Confederate.

Elie Mystal

Texas National Guard soldiers stand guard on the banks of the Rio Grande at Shelby Park on January 12, 2024, in Eagle Pass, Tex.

(Brandon Bell / Getty Images)

Many Democrats treat the Empire of Texas as an alarming sideshow. Sure, the state executes the most people in the country, places bounties on those who smuggle pregnant people out of state to receive reproductive care, and uses migrants for target practice—but for many liberals Texas is just a sick joke that can be disregarded until Ted Cruz shows up for a football game. Even now, as the state openly repudiates federal laws, the most common refrain from the “always-online” liberal community is “Good: Give Texas back to Mexico.”

That is not the right answer. First of all, Texas doesn’t want to leave. It wants to invade the rest of the United States and remake the country in its own Christofascist image. Moreover, as is typical with these “states’ rights” types, the definition of “freedom” envisaged by the white guys running Texas is one where they are the only ones forever free—and they are allowed to subjugate women and people of color in their grabbable areas. But most important, allowing a state like Texas to thumb its nose at human rights and federal authority does nothing but give aid and comfort to other would-be rebel states to do the same.

Texas is not a sideshow; it is ground zero in the battle to reassert states’ rights over individual rights and the federal government. And, with the help of Republican judges and a Democratic administration that still seems bound by a rule book Texas is eager to torch, Texas is more or less winning the first battle in this Civil War reenactment.

The flash point for this crisis is, of course, the border. I have written before about Eagle Pass, Tex., as a place along the Rio Grande where it is popular for immigrants to make the crossing. Texas Governor Greg Abbott has erected a series of sadistic obstructions across this part of the river—including buoys ringed with razor wire and underwater traps—meant to maim and even drown people trying to swim across the river. Should people, and their children, survive Abbott’s gauntlet, Texas officials on the other side have been accused of pushing them back into the river, or denying the survivors medical aid or even water.

In response to this murder-barrier, which is in clear violation of both federal law and international human rights laws, US Attorney General Merrick Garland… filed a lawsuit. Because when a rebel force erects a literal death trap on federal lands, the right answer is to use the slow and plodding legal process instead of sending, I don’t know, a Zumwalt-class naval destroyer into the river to clear the obstructions. The lawsuit is still pending while people drown, of course.

Lawsuits do have some effect on restraining Texas’s actions. Governor Abbott recently admitted: “The only thing that we’re not doing is we’re not shooting people who come across the border, because of course, the Biden administration would charge us with murder.” So, good job “murder laws,” way to make murderers think twice before murdering people. Nonetheless, Garland’s lawsuit did not compel Texas to tear down its medieval fortifications.

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Eventually, the Biden administration did send federal Border Patrol agents to Texas to monitor and provide humanitarian aid to the people Abbott would let die. In response, Abbott erected another razor wire fence, this time to keep the federal agents away from the river and prevent them from helping.

Again, instead of cutting through the razor wire and arresting the people trying to obstruct the federal government, the Biden administration sued. I’m going to say this part really slowly for the MAGA “tourists”: Preventing federal officials from carrying out their duties is a crime.

The federal government has nearly unfettered authority to make national immigration policy, and even if you’ve watched too much Fox News to believe that, it certainly has total constitutional authority to patrol the nation’s borders. Lawyers for Texas argued, however, that the government’s authority does not extend to repurposing private dwellings to enact its policies, and that’s true. But putting up a fence to block access to an international waterway does not convert the Rio freaking Grande into a private dwelling.

The Supreme Court heard this case on emergency appeal—and last week it ruled in favor of the Biden administration. But, shockingly, the vote was only 5-4, with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and alleged attempted rapist Brett Kavanaugh all dissenting without comment. (It might have been interesting if they had written something; we might have gotten the first judicial comment about the Third Amendment—which prohibits forcing private individuals to provide for federal troops—that anybody can remember.)

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Despite the legal loss, Abbott was undeterred. Perhaps inspired by the fact that there appears to be at least four justices willing to defend Texas’s right to go to war with the federal government, Abbott issued a lengthy statement claiming that Texas is under foreign “invasion” (from desperate migrants who are too exhausted to stand after their ordeal); that the Biden administration has failed in its federal duty to protect Texas from invasion; and thus Texas has the authority to “defend itself” through any means. Abbott says Texas has a right to “stand its ground”—and we should all know by now that “stand your ground” is white-people code for “kill brown people who bother us.” If that argument sounds totally detached from any reasonable code of laws, that’s because it is, but it should also sound familiar. Abbott and Texas has already made this exact same argument in defense of its recent “show me your papers”–style racial profiling bill, which allows Texas to arrest any undocumented immigrant—or any suspected undocumented immigrant, whatever the hell that means—and jail them or deport them back to Mexico, even if they’re not Mexican.

This ridiculous “invasion” rhetoric is being parroted by red-state governors across the country. South Dakota’s Kristi Noem, for instance, has said she is willing to send her state’s own troops to help Texas “secure the border.” Yes, red-state governors are threatening to send troops to Texas to fight federal agents.

Liberals online dunked on Fox News because, after a New York jury announced that Trump owed E. Jean Carroll an additional $83 million for defaming her, Fox quickly cut away from the verdict to return to its ongoing “border crisis” coverage. It looked like Fox was doing its usual thing of distracting from the legal woes of their Lord and Savior with more fearmongering and fake news about immigration. To be clear, the network was certainly doing some of that. But we are in a situation where there is a state in open rebellion against both federal law and a Supreme Court order, and they’ve got guns.

The white-wing media complex is simply giddy about the prospect of defeating federal agents trying to enforce the law, while the left is devoting a lot of time to defending Taylor Swift. Don’t get me wrong, Swift seems like a really cool lady, and I hope that she and Kansas City Cultural Appropriations tight end Travis Kelce have found true and everlasting love, but Texas is leading a revolt against the federal government, as it continues to harm immigrants, while the Biden administration waits for the refs to throw a flag.

People will say Texas is merely “causing a constitutional crisis” as opposed to spoiling for civil war. But that is the wrong frame. There is no “constitutional” crisis here, because there is nothing up for reasonable interpretation. Texas is violating the Constitution, as well as a court order, and it’s doing so in order to continue to hurt desperate people. The state is literally blocking humanitarian aid to people it deems disposable, effectively trying to shove them underneath the waves before the federal government can throw them a life raft. This is not a legal crisis: This is a rebellion against federal authority and the basic human decency that it’s trying to provide.

If President Biden will not enforce federal laws in Texas, nobody will. In this case, enforcing those laws requires not just breaking down the razor wire defenses and deconstructing the Eagle Pass barrier but also arresting the people who obstruct federal agents performing their duties. If Governor Abbott tries to further obstruct the operations of the federal government and continues to violate the Supreme Court’s order, he should be arrested for treason. And if all that seems aggressive and likely to escalate the conflict, I’d simply point out that appeasement never works, and Texas has already taken the aggressive step of violating court orders in order to harm as many migrants as it can, all while Biden and Garland impotently shout, “Hey pal, that’s not fair!” as dead bodies float on by.

Does Biden have the stomach to fight this? Abbott is betting that he doesn’t. It’s the same bet Jefferson Davis and Robert E. Lee made about Abraham Lincoln: They didn’t think they could “win” the Civil War; they thought the Union wouldn’t have the will to stop them.

The Confederates were wrong about Lincoln. The Republicans may be right about Biden.

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Elie Mystal

Elie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.

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