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Whose Border Is It, Anyway?

The arguments over border sovereignty have never died away in more than two centuries of American life. Now they are coming to the forefront again.

In late January, two flags flew over the headquarters of the Texas National Guard. One was the flag of the state of Texas. The other was the legendary “come and take it” flag from the state’s war for independence against Mexico. The U.S. flag was nowhere to be seen.

That’s a good way to summarize the biggest dispute between federal and state power since the civil rights era — perhaps, even, since the Civil War. The issues are epic.

None of the banners that flew over the campaign for Texas in the 19th century is more famous than the “come and take it” flag. As talk about Texas independence heated up in 1835, the Mexican army decided it wanted to take back a cannon it had lent to the Anglo settlers in Gonzales, a small town to the east of the San Antonio mission. But the settlers would have none of it. A small band of militia circled the cannon and dared the Mexicans to “come and take it.” They tried but couldn’t, and the legend of fierce resistance to overwhelming force was born.

This time, the struggle is in Eagle Pass, a small town with a strategic public park along the Rio Grande border between the United States and Mexico. The feds — Customs and Border Protection — had used the park to process migrants streaming across the border and to launch their boats to patrol the river.

Gov. Greg Abbott, however, declared that he was forced “to invoke Article I, Section 10, Clause 3 of the U.S. Constitution, thereby enabling the state of Texas to protect its own territory against invasion by the Mexican drug cartels.” In Eagle Pass, that protection took the form of multiple strands of razor wire. He enlisted the support of 25 other Republican governors “to stand in solidarity” with his position. The feds countered that U.S. Customs and Border Protection (CBP) had the legal obligation and authority to control the border.

The dispute went to the U.S. Supreme Court, which in late January issued a three-sentence decision that CBP could cut open the razor wire so that the agency could regain access to the border and the boat launch area. Abbott countered by stringing new razor wire. It wasn’t a violation of the Supreme Court’s ruling, he said, because the Supreme Court decision merely allowed CPB to cut existing wire to gain access. The only real certainty was that the Supreme Court would be involved again soon. It’s the Battle of Gonzales all over again.

So just who is responsible for protecting what?

In an 1849 decision, Luther v. Borden, the U.S. Supreme Court said that border control issues were at their core political — that is, the decisions needed to be made by Congress, not the courts. Congress delegated authority over the response to insurrections to the president. In the current case, that delegation extended to the U.S. Department of Homeland Security and, from there to Customs and Border Protection. So CBP had the power to guard against invasion, at least according to this line of reasoning.

Abbott countered that “the federal government has broken the compact between the United States and the states.” The governor claims that President Biden has refused to enforce immigration laws. He insists that “the states should not be left to the mercy of a lawless president who does nothing to stop external threats like cartels smuggling millions of illegal immigrants across the border.”

Nearly 250 years ago, in the constitutional debates at the nation’s founding, it was established that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” That is what the Tenth Amendment says. Some of the founders contended that the states could therefore nullify federal laws and policies and, at the extreme, could secede from the union. John C. Calhoun picked up the argument in building the case for secession before the Civil War.

Now, in the middle of this legal wrangling, the idea of “Texit” — the withdrawal of the state from the Union, has resurfaced. This might seem a preposterous notion, but Republican presidential candidate Nikki Haley said that “if Texas decides they want to do that, they can do that,” before she walked her comments back.

In “Federalist 22,” Alexander Hamilton called the secession idea “a heresy.” The states might have come together to form the union, he wrote, but “the fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE” (with emphasis in the original). Chief Justice John Marshall famously reinforced that argument in McCulloch v. Maryland (1819). The people, not the states, he ruled, are the building blocks of the democratic compact in the United States. After all, he pointed out, the Constitution begins with “We the People,” not “We the States,” so the states don’t have the power to unwind the compact.

That scarcely has cooled the passions of those waving the “come and take it” banners, especially in this election year. But the question of who has access to the “47.4 acres of parkland on the beautiful banks of the Rio Grande River,” as the city’s website puts it, is far bigger.

It reaches back to one of the most fundamental debates at the nation’s founding. It connects to the principle that led the Confederate states to secede at the beginning of the Civil War, and to the legal principle of union re-established at its end. It conjures up the fierce Texan loyalties that drove the Mexican commander Santa Anna back into Mexico.

And it raises a very big question for today. Where should the balance of power between the federal government and the states rest? This debate has always been at the core of American constitutional government. It’s a debate that even looking to the original intent of the founders never seems to settle.

Donald F. Kettl is professor emeritus and former dean of the University of Maryland School of Public Policy. He is the co-author with William D. Eggers of Bridgebuilders: How Government Can Transcend Boundaries to Solve Big Problems.
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