Eric Gay/AP Photo
Texas Gov. Greg Abbott greets members of the National Guard as he arrives with fellow governors for a news conference along the Rio Grande to discuss Operation Lone Star and border concerns, February 4, 2024, in Eagle Pass, Texas.
Republicans in the former Confederacy seem determined to refight the Civil War.
As you recall, the deeper cause of that war was the battle over slavery—first whether it would be expanded into the territories and then whether it would be abolished entirely. The constitutional question was the right asserted by slave states to nullify federal law. A related question was whether slave states could countermand the laws of other states.
You will also recall that we fought a terrible war to settle these questions; and that Lincoln and the federal union won on all counts. Or so it seemed.
Today, many Southern governments are determined to assert their right to nullify federal law or to encroach on rights protected by other states. Exhibit A is the effort by Texas Gov. Greg Abbott to take over enforcement of border protection, a power explicitly granted to the national government in the Constitution.
In a series of theatrical stunts, Abbott has directed the Texas National Guard to install 17 miles of razor wire along the Rio Grande. He has dispatched the Guard to block outnumbered federal Border Patrol agents from accessing a 2.5-mile stretch in Eagle Pass. In plain violation of federal law, Guardsmen who intercept would-be refugees deny them their right to seek asylum.
Even the Roberts-Trump Supreme Court found this usurpation of clear federal authority unconstitutional. In January, by a 5-4 vote, the Court vacated a previous injunction from the U.S. Fifth Circuit Court of Appeals that prevented Border Patrol agents from cutting the concertina wire. Chief Justice Roberts and Trump appointee Amy Coney Barrett joined the Court’s three liberal justices.
But Abbott continues to use the National Guard to block U.S. Border Patrol agents from accessing the 47-acre Shelby Park in Eagle Pass. So far, it hasn’t come to an armed confrontation, but only because the Border Patrol keeps standing down.
In March, a new state law will take effect directing the Texas National Guard to arrest migrants attempting to seek asylum, a clear violation of federal and international law. The penalty is a year in prison. Guardsmen are already pushing asylum seekers who make it across the Rio Grande back into the river.
Greg Abbott joins Bibi Netanyahu in making a fool of Biden and demonstrating the president’s weakness. The time is long overdue for Biden to join other presidents who federalized state National Guard units when governors used them to defy federal courts and federal law.
The Constitution empowers the president to enforce the laws. But that power is not self-executing.
He would be in good company. That Bolshevik Dwight D. Eisenhower federalized the entire Arkansas National Guard to enforce court-ordered school desegregation in Little Rock. Ike, who knew something about military logistics, even sent in elements of the 101st Airborne to help. Presidents Kennedy and Johnson both federalized state National Guard units when governors were menacing civil rights workers and defying court orders.
Former Texas Congressman Beto O’Rourke and current Rep. Joaquin Castro have both called on Biden to federalize the Texas National Guard. Failing to do so only reinforces the games that Abbott is playing.
What is Biden waiting for? The Constitution empowers the president to enforce the laws. But that power is not self-executing.
There is both a principle here—the sovereignty of the federal union that Lincoln saved—and high political stakes. As Biden and the Republicans hash out immigration policy, will Biden be a pushover for cheap political stunts that only weaken his influence and credibility?
Meanwhile, on another front of the impending Civil War II, health care professionals in several states have mobilized to help women in states that ban abortion. Not only are women and medical providers welcome to travel to sanctuary states for needed reproductive and gender-affirming care; in Massachusetts and five other states, medical professionals will fill prescriptions for medication abortions and mail the medications out of state.
Massachusetts, Washington, Colorado, Vermont, New York, and California have enacted shield laws that protect doctors, nurse practitioners, and midwives who prescribe and send abortion pills to patients in states that ban or sharply restrict abortion.
Anti-abortion zealots have vowed retribution, against both the professionals and the women. Some states have even tried to impinge on the right of travel to keep women bottled up in restrictive states. Idaho, Arizona, and Missouri have laws authorizing prosecution of people who help minors travel out of state to get an abortion.
In August, Alabama’s attorney general asserted the power to prosecute people who helped residents leave the state for an abortion, relying on criminal conspiracy laws. Some counties in Texas have passed ordinances that would outlaw using their roads to drive someone out of state for an abortion.
This all has echoes of the Fugitive Slave Act, which Congress passed as part of the so-called Compromise of 1850, in a last-ditch effort to appease the slaveholding South. The act required that escaped slaves be returned to their owners, even if they had made it to a free state, and required the federal government to help with their capture. Revulsion against the Fugitive Slave Act only increased abolitionist sentiment in the North.
With a Democratic president and a divided Congress, we are unlikely to see a fugitive abortion act, but several states are acting as if they have the right to pursue women and health professionals into free states. We would all be better served if our president were much more resolute in facing down these efforts to weaken the Union in order to promote substantively disgraceful policies.
