Why Texas Is in the Right in the Border Showdown

1,598 words

The showdown between Texas and the federal government over border security highlights another equally nebulous border: the border between federal and state power. While the latest ruling on the matter was not a final decision, the invasion will not stop in the meantime due to legal niceties.

The crux of the federal argument in the recent case is that immigration is a federal matter. But the United States Constitution does not explicitly grant the federal government power over immigration. The courts, for whatever their opinion is worth, have held that immigration is a federal matter because it is heavily implied: first, through implication due to Congress’ power over naturalization and foreign commerce as well as the President’s power over foreign affairs; and second, through implication because the US government is a sovereign power, and controlling immigration is what sovereign nations do — in other words, “duh.”

This generally makes sense. In an ideal world, the federal government ought to control immigration rather than the states, if for no other reason than efficiency and uniformity. But we live in the real world — in a vast, decaying, multiracial empire — and in the midst of that great stream of becoming which is called history, and which is wholly indifferent to theory — including legalism. The existence of our people is non-negotiable. It is not contingent upon anything, let alone the interpretation of some scrap of paper from the late eighteenth century.

It is also an undeniable political reality that legitimacy matters, however. Legitimacy from law bolsters the will to power of our people while sometimes undermining that of our enemies, or at least their rank-and-file base. Legalism, for better or (more likely) worse, is baked into the American people’s genetics and culture due to our Anglo-Saxon heritage.

While caring about legal arguments in regard to blood and soil is objectively absurd, crafting strong legal arguments is subjectively not merely a sound, but a necessary strategy. Thankfully, there are a number of strong legal arguments for why Texas, and the states in general, are legally in the right in the current conflict.

First, if federal power over immigration is implied by the Constitution, then it naturally follows that other things are also implied. I would argue that federal power over immigration comes with an implied duty of good faith. Federal power over immigration never encompassed the power to mismanage immigration, let alone intentionally so. There is a zone of ambiguity where what one might call mismanagement might be called mere disagreement by another. But once federal troops are cutting Texas’ barbed wire, we have passed beyond ambiguity, because the intent to sabotage immigration policy is clear to all but the most deranged or bad faith-holding liberals. This is shown by the fact that, despite the partisan political climate, 69% of likely US voters still support Texas erecting its own barriers.

It is common sense that the power to do a thing does not necessarily encompass the power to do it poorly, maliciously, to intentionally sabotage it, or to not do it at all. This was the reasoning of the seminal case of Wood v. Lucy, Lady Duff-Gordon. The defendant, a rich fashion designer, claimed that a contract was illusory because the plaintiff was not explicitly bound to do anything. Judge Cardozo reasoned that the agreement in that case had an “implication of a promise” for the Plaintiff to do his job, and thus the agreement was a contract and could be sued over. When we look past the fancy 1917 verbiage, Cardozo’s reasoning comes down to a simple “duh” and a refutation of the old, autistically rigid English interpretation of contracts:

The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal. It takes a broader view to-day. A promise may be lacking, and yet the whole writing may be “instinct with an obligation,” imperfectly expressed. [citations to other cases omitted]

You can buy Greg Johnson’s The Year America Died here.

If federal power over immigration stems from implication, it should come with an implied duty of good faith.

Yes, this is a novel interpretation of law, and I am applying a principle from contract law to constitutional law. But every legal doctrine has its first case before the august dignity of stare decisis is deservingly or undeservingly cast over it. And an implied duty of good faith at least exists in another realm of law. In contrast, the legal doctrine of “public accommodations” which was used to eviscerate freedom of association, at least for whites, was spun out of the ether during the Civil Rights era.

Furthermore, it makes sense to draw from contract law, because even though the notion that the basis of government is a social contract is rather silly, as discussed here, social contract theory can still serve as a useful fiction for examining the reciprocal rights and duties of the national and state governments and the citizenry.

This flows into the second argument, which is that the federal government has an affirmative duty to protect the states from invasion. This is what Governor Greg Abbott argued in an official statement on January 24, 2024 that was posted on Twitter/X in which he stated that Article IV, Section 4 of the Constitution promises that the government “shall protect each [state] against invasion.” People love to talk endlessly about their rights, but they tend to recoil at the thought of any corresponding duties. Because the federal government is in breach of its duties, Governor Abbott drew upon Justice Scalia’s dissenting opinion in Arizona v United States (2012) to argue that “the States’ sovereign interest in protecting their borders” from Article I, Section 10 had been activated.

The Biden regime could of course argue that there is no invasion because uniformed troops are not crossing the border from a body that has issued a formal declaration of war against the United States. But we are no longer in the halcyon days of 1789. Just as the public square has changed and is more online than offline now, war in the grim darkness of the twenty-first century has also changed. Invasions are today more likely to be undeclared and carried out via waves of mass migration, wielding guilt and slave morality as their weapons instead of rifles.

Mass migration is just one way in which war in the age of Aquarius will be increasingly non-kinetic, and will be waged increasingly by law, economics, diplomacy, technology, information, and propaganda. Despite their brilliance, the Founders could never have envisioned our reality. Adhering to the rigid, outdated definition of war is suicidal. China has been advancing and the US declining in large part because China adheres to an accurate conception of modern warfare as outlined in Unrestricted Warfare instead of outdated theories and doctrines. Biden retaliating against Texas by pausing regulatory approval of new liquefied natural gas export terminals is an example of how the US is actually in the midst of a Cold Civil War.

You can buy Savitri Devi’s The Lightning and the Sun here.

In The Lightning and the Sun, Savitri Devi likewise argues that all force, not only physical force, is violence. She even calls Gandhi one of the most violent men in history because of his effective use of moral violence to drive the British out of India. Savitri argued that moral violence might seem more noble, but that it is actually less noble than traditional violence, because it deceitfully tricks people into thinking that it is not violence. Staged photo opportunities of crying children behind barbed wire aimed at guilt-tripping America into accepting infinite migrants who will bring crime, poverty, and violence with them is just as ultra-violent as saturation bombing. The ruins of Los Angeles testify that the end result is just as devastating.

A third argument is that the federal government does not have a monopoly on immigration policy because of the state’s police power. Police power allows states to make laws to promote the health, safety, morals, and general welfare of their citizens. Immigration would not seem to fall under the states’ police power if we take a narrow view of immigration. But in ¡Adios, America!, Ann Coulter, with ample citations, lays out the true costs of immigration in regard to safety, crime, welfare and other public services, tax revenue, native birth rates, and quality of life, all of which clearly affect public health, safety, morals, and the general welfare. This is further buttressed by Governor Mark Gordon of Wyoming’s declaration that

Wyoming stands in solidarity with Governor Abbott and the State of Texas in utilizing every tool and strategy to secure the border and protect American citizens. We are all border states now.

Immigration affects the health, safety, morals, and general welfare even of those citizens who live far from the border. As such, the federal government does not have a complete monopoly over immigration policy.

Texas clearly has a legal right to defend its borders, as do all states. Leaders who defy the federal government can do so confidently, knowing that they can present sound legal arguments to garner the support of their people and regardless of whether the subversive courts agree or not.

This whole debacle illustrates another point, though: the necessity of a national divorce. That there is any disagreement at all about the fact that we are being invaded shows that the US citizenry is already living in alternate realities. We can’t live with people who disagree with us on something as fundamental as what constitutes an invasion. A national divorce would also afford the US’ successor states an opportunity to revise their constitutions to incorporate lessons learned, accurately reflect our historical reality, clarify ambiguity, and to confront the challenges of the current century.