Not since the meek accountant in the back of the courtroom leapt up and screamed, “Stop, Perry Mason! I did it! I killed him, and I’m GLAD!” has a suspect been quite so eager to confess his crimes as Donald J. Trump. When he proposed a Muslim ban in 2016 and then actually declared one in 2017, his lawyers told him not to call it that—so he changed the wording but let audiences know it was still the ban he’d promised. In 2020, he did not beg Georgia Secretary of State Brad Raffensperger to conduct an accurate vote count but only to “find “enough votes to flip the state to him. Before his followers marched on the Capitol, he told them to “peacefully and patriotically make your voices heard.” But after the crowd brutalized law enforcement, he told them, “We love you, you’re very special.” Found liable for raping and then defaming E. Jean Carroll, he could hardly wait to defame her again on the courthouse steps.
His latest outburst comes as Colorado has asked the Supreme Court to let it exclude Trump from its 2024 ballot because, it says, he “engaged in insurrection or rebellion” in violation of his oath of office and the terms of the Fourteenth Amendment.
I don’t know about you, but if I were facing that day in court—if my re-election campaign might depend on its outcome—I would stand outside court professing my deep love for the law, the Constitution, and the Court itself.
Not Trump. He has, in the past week, for almost no reason I can fathom, swung aboard a burgeoning new insurgency, potentially as dangerous as that of January 6, 2020. Put me back on the ballot. Trump is signaling “his” justices, I will do it again. I don’t recognize the law. I don’t recognize the Constitution.
I don’t recognize you.
It is a curious tactical choice. It comes as part of the standoff between Greg Abbott, the governor of Texas, on the one hand, and the federal government—both President Joe Biden, as the head of the executive branch, and the Supreme Court, as the expositor of the law—on the other. Abbott doesn’t care much for any federal official and says he has no intention of letting anyone interfere with his reckless blockade of Texas-Mexico border crossings.
He is, in short, maneuvering himself into the space once occupied by the late Governor George Corlee Wallace of Alabama, who stood in the door of the state’s university in a showy but vain attempt to block a federal court order to admit black students. Wallace, at least, stepped aside and let the students enter. Abbott may not concede.
The Republican has even announced that Texas now controls his state’s border with Mexico; the U.S. Border Patrol was no longer welcome there. State law enforcement personnel floated barriers in the middle of the Rio Grande, and National Guardsmen, under the governor’s control, erected razor wire on the American Texas side. When migrants in mid-river ran into this imitation of Berlin 1961, Texas troops blocked Border Patrol agents from making a rescue, as they ordinarily do.
The migrants drowned.
The Supreme Court issued a temporary order allowing federal personnel to remove the razor wire. The razor wire has stayed up, and Abbott has proclaimed it.
I have already declared an invasion under Article I, § 10, Clause 3 to invoke Texas’s constitutional authority to defend and protect itself. That authority is the supreme law of the land and supersedes any federal statutes to the contrary. The Texas National Guard, the Texas Department of Public Safety, and other Texas personnel are acting on that authority and state law to secure the Texas border.
This constitutional logic is bat sputum crazy. First, the “reserved power” Abbott (to “declare an invasion” and use state military forces against it) is asserting doesn’t, well, you know, exist. The language in Article I appears in a section entirely devoted to forbidding state interference with federal prerogatives: “No State shall, without the Consent of Congress, . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” Claiming an “invasion power” makes as much sense as pointing at a NO PARKING sign and claiming it gives him “the parking power.”
Matters of border protection, immigration, military policy, and foreign relations are the exclusive province of the federal government and have been for at least a century and a half. The Roberts Court reaffirmed this truism as recently as 2012 in a case called Arizona v. United States. The Constitution not only explicitly entrusts these matters to federal power, the Court noted, but the federal government also, by enacting a comprehensive immigration code, has “occupied the field” to such an extent that any state interference is prohibited. This is of a piece with the Constitution’s concern for federal supremacy. States cannot conduct their own foreign policy; they cannot engage in military operations against other countries; they cannot create their own immigration policies that displace federal authority. It has also been clear for at least 75 years that a governor can’t set aside an order from the Supreme Court.
Abbott has begun to prepare to do precisely that, relying on two sources of “law”—the first, a dissent by Justice Antonin Scalia that is flatly contradicted by what the Court decided, and the second, a word salad of constitutional language:
The failure of the Biden Administration to fulfill the duties imposed by Article IV, § 4 has triggered Article I, § 10, Clause 3, which reserves to this State the right of self-defense. For these reasons, I have already declared an invasion under Article I, § 10, Clause 3 to invoke Texas’s constitutional authority to defend and protect itself. That authority is the supreme law of the land and supersedes any federal statutes to the contrary. The Texas National Guard, the Texas Department of Public Safety, and other Texas personnel are acting on that authority and state law to secure the Texas border.
On this slender reed, Abbott hangs his supposed power to “declare an invasion” and set aside federal authority. “Declaring an invasion” just isn’t a thing, and I can’t explain why more clearly than Abraham Lincoln did when he quoted an old farmers’ aphorism: How many legs would a sheep have if you called a tail a leg?
Four. Calling a tail a leg doesn’t make it a leg.
There is no invasion. Calling the border standoff one doesn’t make it one. Even if the federal policy is a failure, a policy disagreement doesn’t turn into a foreign army just because some jack-in-office in Austin signs a piece of paper. The predicate for any self-defense by a state is not just an invasion on paper—it is an “actual” invasion. What is happening at the border now is not even a virtual one.
Abbott’s ravings would be comic, except they have serious, even deadly, consequences. As Stephen Vladeck points out in The New York Times, Abbott hasn’t yet “defied” the Supreme Court, partly because the Court’s order is so terse and tells us little about what is to come. But what Abbott is doing right now is what drunks in a bar do every mortal night of the year. Using bellicose talk and deranged arguments against invisible enemies, he is talking himself and his MAGA allies into outright defiance if the occasion presents itself. He aims his gaudy patter squarely at federal authority, at federal courts, and at the Constitution itself.
Anyone who lived in the South in the 50s and 60s knows the danger of rogue governors pitting men with guns against federal courts. In 1957, Arkansas Governor Orval Faubus sent in National Guard troops to block the federal court-ordered desegregation of Little Rock’s Central High School. President Dwight D. Eisenhower broke the logjam by “federalizing” the National Guard with orders to force compliance.
Five years later, federal officials tried to escort James Meredith, a black student whom a court had ordered enrolled in the University of Mississippi, into Ole Miss. Rioting broke out that required 30,000 federal troops to quell—and that caused more than 150 injuries and three deaths.
Is what’s happening in Texas an “insurgency”? If not, it is, at best, only one self-serving Abbot stunt away. Governors playing general seem clownish right up to the moment the first bullet flies. And though he has not yet moved into full defiance, his defiant rhetoric sets the stage for a full-fledged constitutional showdown.
This constitutional deviance is proving contagious. On January 25, all but one of the nation’s 26 Republican governors issued a statement backing Abbott and Texas “in utilizing every tool and strategy, including razor wire fences, to secure the border.” (Vermont’s Phil Scott didn’t join the Abbott’s George Wallace cosplay.)
That brings us back to Trump. If I were (God help me) Trump’s lawyer, I would suggest he stay quiet until the ballot exclusion case is resolved. Talk nice to your judges, I might say. Win this one, boss, and then you can do any crazy thing you want.
Would Trump follow that advice? As Bob and Ray used to say, I bet you believe in the Tooth Fairy too. Trump has now needlessly injected himself into the border standoff with the eagerness of Southern firebrand Edmund Ruffin, who fired the first cannon shot at Fort Sumter in 1861.
What we need at the border, the oft-indicted former president proclaimed, is more razor wire, more troops, more guns, more dueling commanders, more chances for things to go wrong. The 77-year-old, whose bone spur prevented his serving on the front lines in Vietnam, called for “all willing states to deploy their guards to Texas to prevent the entry of illegals and to remove them back across the border.”
The Supreme Court will grapple with whether Trump is an insurgent in less than a week. This is, let us remember, the conservative Supreme Court that Trump and the MAGA movement built. Having temporarily lost one preliminary motion, many statehouse-hacks-turned-generals are threatening to defy the court.
So, as Bob Dylan might say, let us not talk falsely now. He really proposed a Muslim ban. He really did try to steal the vote in Georgia. He really did want the rioters to hang Mike Pence. He really did rape E. Jean Carroll.
And he really is running for President to “terminate” the Constitution.
He is, in other words, an insurgent. In a sane legal system, he would be under house arrest awaiting trial.
Trump and the Republican governors are playing a dangerous game–warning the Court to back off, saying they will defy any order they dislike.
This packed, politicized Supreme Court has, at least for now, lost its place of honor in American culture. Its critics have been vocal; the justices are learning that their “friends” feel contempt for them as well.
