By Ambassador Thomas Graham, Jr. (Retired). and David Bernell
“The federal government has broken the compact between the United States and the States,” said Governor Greg Abbott of Texas on January 24, 2024. His claim is that the Biden Administration has failed to carry out the requirements of the Constitution, which says that the federal government will protect states from “invasion” (Article 4, Section 4). The Governor’s statement said that because President Biden has refused to aid Texas in repelling an “invasion” from the southern border, this has triggered another part of the Constitution (Article I, Section 10) which reserves to the states the right of self-defense. To that end the Governor said that Texas was going to defend itself in exercising its right to sovereignty. “I have already declared an invasion…to invoke Texas’s constitutional authority to defend itself 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, as well as state law, to secure the Texas border.”
Over the past few years, Governor Abbott has taken action in the state to slow immigration. He ordered 30 miles of razor wire to be placed along the border at the town of Eagle Pass along the Rio Grande river, along with other obstacles in Shelby Park, a focal point within the town. In addition, a 1,000 foot long floating buoy was placed in the Rio Grande river to prevent people from crossing. Texas even blocked federal border officials from the area who tried to provide needed medical aid to migrants and refugees. When federal officials began to cut the razor wire in 2023, citing federal authority over immigration and the border, this brought the issue to the courts. Amidst competing legal decisions, the Supreme Court stepped in and ruled on January 22, 2024 that federal agents could legally cut the razor wire and do their jobs as specified by federal law. This ruling is what prompted Governor Abbot’s statement two days later, when the Governor stated, or at least implied, that he does not recognize and will not abide by the Supreme Court decision authorizing federal officials to remove the wire and assist the migrants and refugees as needed.
Twenty-four other Republican governors publicly supported Gregg Abbot when he said, in effect, that he would ignore the Supreme Court ruling. This group represented all Republican governors currently in office, except Phil Scott of Vermont. One of the governors supporting Abbott, Governor Kristi Noem of South Dakota, offered to send the South Dakota National Guard to Texas to assist (Governor Kim Crawford of Iowa made the same offer). Governor Noem also said that “Texas and those 13 original colonies would never have signed the treaty that formed the first Constitution of the United States if they did not think their right to protect themselves and defend their own people was protected. So what Joe Biden is doing is threatening our state sovereignty.” Of course, Texas was not part of the United States when the Constitution was ratified in 1787. It was a province of Spain. Texas didn’t join the United States until 1845, some six decades later. When Texas did become part of the United States, it agreed to abide by the Constitution, and that is the real issue at hand here regarding management of the border. The question is ultimately Constitutional: Who gets to control immigration policy, the federal government or the states? The Constitution has long been understood to place this authority in the hands of the federal government, not the states. Moreover, the “supremacy clause” of the Constitution says that federal law is the “supreme law of the land” and that no state laws or constitutions can take precedence over this. In fact, giving federal law supremacy over all state laws was the primary point in establishing the Constitution in the first place.
In making his complaint, Governor Abbott is seeking to address the Constitution in two ways. The first is that an invasion of Texas by foreign forces is currently underway, and that states have a right to protect themselves from invasion. The second is that the Constitution is a compact among states, and that states can refuse their participation and cooperation in the Constitution when they disagree with federal policies and actions. In both of these cases the Governor is entirely wrong in his assertions, as well as his conclusions.
Governor Abbott’s argument is that Texas is being “invaded.” This is important because the Constitution provides that the federal government will protect states from invasion. The Governor argues that Texas has been left without protection by a lawless president who is doing nothing to stop an external threat. He and the 24 other Republican governors who endorsed Abbott’s statement claim that an “invasion” is actually being carried out by millions of people (families that are unarmed) and likely people involved in Mexican drug cartels, though in far smaller numbers. Because of these border crossings bringing people and drugs across the border, Governor Abbott has declared an invasion under Article 1, Section 10, Clause 3 of the Constitution to invoke “Texas’s constitutional authority to protect and defend itself…That authority is the supreme law of the land.”
The fallacy in this reasoning is that what is happening in Texas does not constitute an invasion. Russia’s attack on Ukraine is an invasion. We are confident that all 25 of these governors can tell the difference. Surely a visit to Ukraine would convince them. The term “invasion” as it is used in the Constitution is referring to something far different than what in going on along the U.S. southern border, and it does not give states license to usurp federal policy or interfere with law enforcement.
Governor Abbot’s second error is in arguing that the Constitution is a compact among states, which have the right to refuse federal authority when they see fit and to limit their participation in this union. This reasoning even goes so far as to permit secession, the ultimate rejection of the Constitution and the United States. While Governor Abbott has not gone so far to use the word secession, his language does at least tilt in this direction, and encourages those who have openly supported a secessionist movement in Texas. (In this current controversy, Texas seems to be following in the steps of Abbott’s predecessor, former Texas Governor Rick Perry, who publicly asserted that Texas was thinking about seceding.)
Texas has long been a problem case with respect to secession. After joining the United States in 1845, the state seceded only 15 years later and joined the Confederacy in 1861, primarily to protect the state’s right to engage in slavery. After the Civil War, Texas asserted that it had returned to the United States as an independent state from the by-then dissolved Confederacy. President Lincoln, however, did not abide by this thinking from the start. As states seceded from the union in 1860 and 1861, after his election as president, Lincoln said in his first inaugural address that, “The union of these states is perpetual” under the Constitution. The United States do not form a compact, but are a country bound together by a “national fabric.” Lincoln further cemented this view in his Gettysburg Address, with his famous phrase that the U.S is a “government of the people, by the people, for the people.”
The Supreme Court supported and reaffirmed this position soon after the Civil War. In 1869 Chief Justice Salmon P. Chase wrote in a 5-3 majority opinion in Texas v. White that the Constitution “in all its provisions looks to an indestructible union,” and therefore does not permit secession. For this reason, Texas remained a state of the federal government in rebellion and had never successfully seceded. Secession was and remains null and void according to the Constitution, and no particular state can break away of its own volition. This Supreme Court decision, the Civil War itself, and Lincoln’s own words allowed this interpretation of the Constitution and the union to gain favor after the Civil War, and it became a primary linchpin in understanding the nature of the unity that binds the United States together.
Prior to the Civil War, with respect to conflicts that fell short of secession, the idea of the “compact” was used to justify states rejecting federal law, but it did not stand the test of time. The first major action involving the compact theory was in response to the Alien and Sedition Acts of 1798, which gave the president the authority to deport any alien deemed threatening and made it illegal to criticize the president or Congress. The Kentucky and Virginia Resolutions of 1798, which were passed by the two states in response to these laws, pushed back. These resolutions made the case that, 1) the states are united by a compact under the Constitution; 2) the authority of the federal government is limited to only those powers specified in the Constitution; 3) acts of Congress exceeding those powers are unconstitutional; 4) states have a right to decide if federal laws are unconstitutional and can prevent the application of unconstitutional federal laws in their own territories. This was the position taken by Thomas Jefferson and the new Democratic-Republican party at the time, but the issue was never tested in the courts, and then the election of Thomas Jefferson as president in 1800 essentially ended the crisis.
Later, in the 1830s, the issue arose again, with the Nullification Crisis. In 1828 and 1832 Congress had passed federal tariffs that were more favorable to northern manufacturing than southern agriculture that relied on slave labor. In response, South Carolina proclaimed that the federal tariffs of 1828 and 1832 were null and void in the state. Any action taken by the federal government to collect the tariff would be stopped, by force if necessary. Moreover, any federal actions interfering with the ports and trade would be considered “inconsistent with the longer continuance of South Carolina in the Union.” In other words, by relying on the compact theory, South Carolina argued it could leave the union if it was not allowed to exercise its rights under its compact with the federal government. The conflict was further fueled by the fact that Jackson’s own Vice President, John C. Calhoun of South Carolina (who went on to serve as a Senator starting in 1833), supported nullification and publicly announced that South Carolina had the right to nullify federal laws.
President Andrew Jackson responded his “Proclamation to the People of South Carolina,” saying that the federal government would uphold the tariff, and that any attempt to interfere with federal authority, particularly with armed force, would be TREASON (the capital letters were Jackson’s). While the crisis was resolved by revising the tariff to a level more acceptable to South Carolina, neither the principle nor its defense by the federal government changed. President Jackson saw nullification as a threat of disunion, recognizing that the federal government did not derive its authority from the states. Senator Daniel Webster agreed with President Jackson, saying that attempting to nullify the laws enacted by Congress under implicit threat of secession was not permissible. “No state authority can dissolve the relations subsisting between the government of the United States and individuals.”
Governor Abbott’s desire to nullify statutes that give the U.S. border patrol authority over the southern border is not too different from some of these earlier examples. However, its basis in the idea of a compact among states is not correct, and such thinking has been repeatedly rejected both in principle and practice in American history. A more accurate way to characterize the Constitution and its relationship to the governed is that of a social contract, which involves an understanding that people have consented to the authority of the government and social rules either explicitly or tacitly, in order to ensure governance and social order. The Constitution is an important part of America’s social contract, and it clearly states in its first words the type of an agreement it is, who has established this agreement, and why: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” The Constitution does not begin with the phrase, “We the states.” The agreement that establishes the Constitution, by this reasoning, is among the sovereign people of the United States of America, not the states themselves. To that end, the Constitution belongs to the people, and the determination of “whether a federal law [has] violated the people’s Constitution is a matter left the federal courts and not to the individual states.”
In his farewell address, President George Washington expanded upon this idea, saying that, “The unity of government which constitutes you one people is very dear to you. It is justly so, because it is a main pillar in the edifice of your real independence. The support of your tranquility at home, your peace abroad, of your safety, of your prosperity, of that very liberty which you so rightfully prize.”
President’s Lincoln, Jackson, and Washington, along with Daniel Webster, and of course, the very words of the Constitution itself, do a far better job of explaining the truth of the American political arrangement than Governors Abbot and Noem. Governor Abbott and the other governors who are fueling this fire are not correct in their words and actions. The conclusion we are left with is that they are either seeking to achieve their goals by whatever means they can, even if it means violating the Constitution, or they are instead being deceitful politicians who are acting without principle and are instead attempting to advance their own personal power – and the power of the Republican Party – at the expense of the people they govern and the institutions they have sworn to serve. In the current controversy, neither argument they have advanced has a shred of validity.
There is no “compact” among the states and there is no “invasion” of Texas.
About the Authors
Ambassador Thomas Graham Jr. is former acting director of the U.S. Arms Control and Disarmament Agency under President Clinton, and the special representative of President Clinton for Arms Control, Nonproliferation and Disarmament. He served as General Counsel of ACDA during the presidencies of Jimmy Carter, Ronald Reagan and George H.W. Bush. He is the author of several books on nuclear arms control, U.S. foreign policy, and American politics.
David Bernell is an Associate Professor of Political Science in the School of Public Policy at Oregon State University. His research and teaching focus on international relations, American domestic and foreign policy, and US energy policy. He is the author of the books Constructing US Foreign Policy: The Curious Case of Cuba, and The Energy Security Dilemma: US Policy and Practice. Prior to coming to OSU, he served as an appointee in the Clinton Administration with the US Office of Management and Budget, and with the US Department of the Interior.
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