The Border Game

Republicans are ratcheting up the very crisis at the border that they claim they want solved.

Photo: Reuters / Kaylee Greenlee Beal

Republicans are playing a dangerous game around the border. As I wrote about earlier this week, in a narrow 5-4 decision, the Supreme Court finally lifted an injunction that had prevented the Border Patrol from cutting and removing razor wire erected by Texas along the border at Eagle Pass. The wire was considered highly dangerous because it could trap bodies in flowing water, leading to drowning. 

A mother and her two children recently died at Eagle Pass because, according to federal officials, border patrol agents had been prevented from reaching them due to the state of Texas’s occupation and fencing off of a surveillance and mission launch area.

In response to the Supreme Court’s ruling, however, Governor Abbott decided he would grandstand, telling the Texas state guard to “hold the line” at Eagle Pass. He then issued a statement, announcing that the Texas guard and law enforcement were now acting under a right of “self-defense” for the state. But it still isn’t clear what this means in practical terms. 

Meanwhile, in Washington it became increasingly clear that all efforts to actually try and fix the border, including a hard-fought bipartisan Senate plan, are likely being scuttled. Why? According to Mitch McConnell, Donald Trump wants to “kill” the deal because he doesn’t want Biden to chalk a political win before the election. 

This is a clear no-win game of border ping-pong, being played out in real time for raw political purposes. Today, let’s take a closer look at what’s going on with Republicans on the issue of the border, and how and why they are now making it the number one issue for the election, with some real and ugly risks to our national security and our civil society.

Governor Abbott doubles down

The Texas governor apparently wants the world to know he doesn’t plan to comply with the Supreme Court, if and when it puts the federal government fully back in control of the border and immigration policy. A little thing like the Supremacy Clause doesn’t seem to faze Abbott, and he means to call the federal government’s bluff.

When he told the state guard to “hold the line” at Eagle Pass, however, it wasn’t exactly clear what this meant. Remember, it was Texas that had sued to obtain an injunction against the Border Patrol, in order to prevent the feds from cutting and removing the razor wire that Texas had erected. All the Supreme Court did was tell the Border Patrol it could continue to cut and remove as before. It didn’t specifically order Texas to back off, at least not yet, and it wasn’t clear whether Abbott would actually try to stop federal removal of the wire.

Abbott went one step further on Wednesday, issuing a statement on “Texas’s constitutional right to self-defense,” again, whatever that means. Texas is claiming that there is an “invasion” of migrants that triggers its right to defy the federal government—a nonsense claim, constitutionally speaking.

“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,” declared Gov. Abbott. “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.”

It bears noting that Abbott has made this argument before and been shot down. A federal judge once described the claim as “breathtaking.” As Aaron Reichlin-Melnick, the policy director of the American Immigration Council, noted, the judge had “pointed out that it would mean state governors had more authority to wage war than the US president—something which obviously is not true.”

This footnote is worth reading in its entirety:

Other legal scholars agreed. As University of Texas law professor Steve Vladeck put it, “By this logic, states could use their own determination that an ‘invasion’ exists as a justification for usurping control of whichever federal policies they don't like. Whatever you think about current immigration policy, this is just a 21st-century re-packaging of nullification.”

By “nullification,” Prof. Vladeck is referring to South Carolina’s attempt in the 1830s to declare federal tariffs null, void and non-binding in the state. That didn’t end well for South Carolina, however, after President Andrew Jackson threatened to enforce the tariffs through armed force, and South Carolina’s neighbors failed to rally to its side.

In Abbott’s case, however, several GOP governors across the South and in other red states, and even the Speaker of the House, weighed in with support. They claimed that they agreed with Gov. Abbott’s actions because the border is in crisis, while Biden officials were to blame because, as Gov. Brian Kemp of Georgia speciously argued, of their “refusal to do their job.” 

So, why the GOP pile on, in the face of clear legal precedent to the contrary? For that we need to zoom out and look at what is going on nationally on the question of immigration and the border.

Republicans might kill the border deal at Trump’s request

It was seen internally by Senate Republicans as a candid and self-reflective moment for the party, but the implications are profoundly disturbing. During a closed door meeting of their Senate conference, Republicans debated what to do about the stalled out security bill, which would fund Ukraine, Israel, Taiwan and the border. Time is not on Ukraine’s side, and McConnell, to his credit, had been a champion of pushing the compromise through.

But the House leadership under Speaker Johnson balked at the border package, claiming it fell far short of the draconian measures that they wanted to see included. Those have always been non-starters for Democrats, so Sen. McConnell and others had been urging support of the compromise bill so that our allies and the border could each receive critical funding.

Then Trump waded into the fight. As McConnell observed, the Republican Party was already in a “quandary” because of intraparty fighting over immigration, and that could prevent any package from passing. The Senate Minority Leader referred to Trump as “the nominee” and noted the former president wants to run his 2024 campaign centered on immigration. “We don’t want to do anything to undermine him,” McConnell said.

As one observer put it, Governor Abbott is “forcing a constitutional crisis because Biden won’t act on border security, and McConnell won’t let Biden act on border security because Trump wants to run on it.”

Significant repercussions

The refusal by Republicans to move forward on the bill demonstrates that the “problem” of the border is more useful to Republicans than any solution, as Secretary of Transportation Pete Buttigieg once observed. Trump is worried that the federal government under Biden might actually fix the thing they are screaming about, taking away one of their last remaining talking points.

After all, it’s hard to complain about the economy when consumer confidence is rising, inflation is in a normal range, GDP is growing, unemployment is low, interest rates are coming down, and the markets are at record highs. It’s hard to focus on crime when violent crime rates are falling and your own candidate is facing 91 felony criminal counts. It turns out attacks on trans kids and “woke” corporations didn’t work so well for Ron DeSantis. And abortion, which used to unite the right in a fight to make it illegal, is now a rallying cry for Democrats to make it legal everywhere again.

That leaves immigration as the bugaboo of choice for Republicans. And it has been quite successful, at least among the party faithful. In Iowa, which is 89 percent white and isn’t anywhere near the border, immigration was the number one concern cited among caucus goers. One wonders how many Iowans know any migrants at all.

Biden and Senate Democrats have essentially called the GOP’s bluff, even offering to work with Republicans on proposals and policies that progressives within their own party revile. But then what would Trump and the GOP have to run on?

To add to the ugliness, Trump has inserted a fascist element into the national conversation too, echoing Hitler by claiming that “illegal immigrants” are “poisoning the blood” of our country. Sadly, while most Americans reject this idea, an overwhelming majority of Republicans agree with it, with the number rising still further once they learn that Trump said it. 

Combined with Abbott’s stunts at the border, spurred on by cynical GOP governors and leaders, this makes for a toxic brew. Trump’s dehumanization of migrants is now being paired with official Texas state policy to keep out an “invasion.” You might as well put a target on the head of anyone who might look like an ‘invader” and “poisoner of blood.”

It isn’t at all clear that the solution to Abbott’s gambit and Trump’s rhetoric is to raise the temperature further by threatening, say, federalization and takeover of the Texas guard. Unlike South Carolina in the 1830s, Texas and Abbott appear to have the support of fellow GOP red states and their governors, the House Speaker and the Republican House majority, as well as as many as four out of five of the Supreme Court justices. Responding with a show of force could result in the entire election year being about immigration and enforcement—exactly where Trump and the GOP want it.

Boring as it may sound, the answer is greater awareness and citizen engagement. The American people need to understand that our national security and the fate of our allies, as well as a solution to the very crisis Republicans claim is destroying our country, are all being held up to serve the political interests of one, corrupt, would-be dictator, all so he can have something with which to bash Biden. And they need to vote like they understand this.

Ultimately, voters must reject this kind of political hostage-taking and gamesmanship over the border by ousting the extremists and the party they control at the ballot box this November. The Republican Party’s abysmal 2022 midterms performance was a warm up to this defeat, but pressure from voters still didn’t quite go far enough. 

The GOP understands political power because it is the thing that its leaders most crave, even for its own sake. It is only through resounding electoral defeat that they will ever change their ways.