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PaperclipPerfector  3mo ago (text post)   26206 thread views

Culture War Roundup for the week of January 22, 2024

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There is a happening currently happening along the Texas/Mexico border which seems to be escalating in an interesting way.

  • The state of Texas has been taking measures to secure their border with Mexico. These measures include installing concertina wire (colloquially known as "razor wire") along the border.

  • A supreme court ruling said that US Border Patrol (the feds) are allowed to go into Texas against Texas's wishes and cut this wire. As /u/slowboy points out below, it is a bit more nuanced than that. There was an injunction preventing CBP from going to cut the wires, and the Supreme Court overruled it. Interesting culture war fodder: Amy Coney Barrett sided with the majority on this.

  • Yesterday, Greg Abbot signaled that he did not have any intention of complying with this.

  • Today, President Biden said that Texas has until tomorrow (Friday) to let them in. (Sorry for the low quality link here. If somebody has a better one please share it).

This does seem to be escalating rapidly. I don't see where the offramps are other than Abbot backing down. If he doesn't, what does that mean? Texas National Guard vs the Federal Government sounds awfully close to...I hate saying this, but a civil war? That's not right though since I can't imagine them shooting at each other.

This is also confusing to me politically. The border situation is not a political win for Biden. Even among liberals the cracks are starting to show. Morning Joe (msnbc show) this morning was talking about how there is a border crisis and it's the republicans causing all this illegal immigration by not doing a "Comprehensive Immigration Policy". That's obviously absurd, but it does show that liberals are willing to agree that completely open borders are suboptimal.

Edit: Trump weighs in

This, to my stupid non-lawyer brain, seems way more like an "incitement to insurrection" than anything he said on January 6th. Interesting.

So interestingly enough it appears that some of Abbott's claims have actually been litigated before, amusingly enough by California in the late 90s, but by other states as well (including Texas once before). California v. United States, 104 F.3d 1086, (9th Cir. 1997). While the 9th Circuit did in essence punt on the case, dismissing it for failure to state a 10th Amendment claim, the court at least discussed the Invasion clause argument. While I will try and do some analysis, I also just want to post some excerpts.

In its Complaint, California asserts that the number of permanent illegal residents in California stands at 1.7 million - 5% of the [*1090] state's population - and increases by approximately 125,000 a year. California further asserts that, in the fiscal year this action was initiated, it would spend nearly $ 2.4 billion in providing federally mandated education and health care benefits to illegal aliens and in incarcerating illegal aliens who commit crimes within the State.

Well that sounds like it could have been written by Abbott's press secretary, just swap Texas for California, update the numbers, and bam, you have a ready-made complaint.

California's Complaint consists of eight claims. In Count I of its Complaint, California asserts that [**6] the United States has violated its obligations to protect the State from invasion and to guarantee it a republican form of government under the Invasion and Guarantee Clauses of Article IV of the United States Constitution by failing to stop the intrusion of illegal aliens across the State's borders.

Starting off strong, I like it. So what does the 9th Circuit have to say?

For this Court to determine that the United States has been "invaded" when the political branches have made no such determination would disregard the constitutional duties that are the specific responsibility of other branches of government, and would result in the Court making an ineffective non-judicial policy decision. See Barber v. Hawaii, 42 F.3d 1185, 1199 (9th Cir. 1994) (dismissing an Invasion Clause claim as a nonjusticiable political question). Additionally, even if the issue were properly within the Court's constitutional responsibility, there are no manageable standards to ascertain whether or when an influx of illegal immigrants should be said to constitute an invasion. The Court notes that the other Circuits that have addressed the issues before us in similar suits against the United States have reached the same conclusions that we do. Padavan v. United States, [**10] 82 F.3d 23, 28 (2nd Cir. 1996); Chiles v. United States, 69 F.3d 1094, 1097 (11th Cir. 1995), cert. denied, 134 L. Ed. 2d 777, 116 S. Ct. 1674 (1996); New Jersey v. United States, 91 F.3d 463 (3rd Cir. 1996); Texas v. United States, No. B-94-228 (S.D. Tex. Aug. 7, 1995), appeal pending, No. 95-40721 (5th Cir).

Moreover, California ignores the conclusion set forth by our Founders. In The Federalist No. 43, James Madison referred to the Invasion Clause as affording protection in situations wherein a state is exposed to armed hostility from another political entity. Madison stated that Article IV, § 4 serves to protect a state from "foreign hostility" and "ambitious or vindictive enterprises" on the part of other states or foreign nations. The Federalist No. 43 at 293 (Cooke ed. 1961). 6 It was not intended to be used as urged by California.

Unsurprisingly, they dodged the question.

In terms of SCOTUS tea leaf reading, hah. Better scholars than I have tried, and their predictions rarely beat a coinflip. Still, I'll give it a quick and dirty try. Right, so the opinion was written by Judge Merhinge, but Judge Reinhardt joined the opinion, and he was notorious for having his cases overturned by the Supreme Court. That said, despite the 9th Circuit's reputation as having many of their cases overturned by SCOTUS, it's important to remember two things. One, the Supreme Court only takes cases that have at least a chance at being overturned. If everyone agrees the lower court got it right, it's unlikely they'd bother taking the case. Two, by simple volume the 9th Circuit just has more cases than other circuits. They preside over some 20% of the US population, which is almost double that of the next most populous circuit (the 11th, with 11%). Despite this, they have only a slightly above average population per judge, so they can accept more cases. More cases means a higher chance of a controversial decision, which means more of their cases go to SCOTUS, which means they'd have a higher overturn rate. Just adding context. Anyway, Judge Reinhardt was also a highly respected feeder judge, which doesn't happen if you aren't a good jurist.

The 9th Circuit in its opinion engages with the definition of "invasion", and their view of understanding the founders to have included "massive influx of illegal immigrants" under the term "invasion" is not favorable for Abbott. The fact they can cite several precedents on this subject is also not good for Abbott, because it provides the liberal members of the court with jurisprudence, and the conservative members cover to avoid a possible constitutional crisis. Throwing up your hands and saying "not my monkeys not my circus" might not be the courageous thing to do, but it may very well be the legally appropriate thing to do. Saying something is a non-justiciable political question is the Supreme Court's favorite way to punt, and if I was going to put money on it I'd wager that's exactly what they're going to do.

It’s quite sad, really, the Californians truly did try to save themselves before they were overrun.

Imagining myself as an adversary of the United States, I could covertly send unarmed soldiers across the open border, have them obtain weapons on the other side, and then attack.

They wouldn't be armed, and the covert nature would prevent the courts from finding that there's foreign hostility.

Now that I think about it, I'd question the competence of foreign adversaries who haven't taken advantage of the open border. They needn't even be setting up sleeper cells, just getting intelligence agents in and out without being documented.

At the scale of two million per year I think the side making the claim that there's no foreign adversaries mixed in should bear the burden of proof. There's not even one guy among the two million who have ties to the militaries of Iran, China, Russia, North Korea?

Imagining myself as an adversary of the United States, I could covertly send unarmed soldiers across the open border, have them obtain weapons on the other side, and then attack.

Attack what exactly? None of four countries you listed are at war with USA.

I challenge the premise is that the border is open -- if it was, it'd be a lot more than 2 million per year. Border crossings happen with cooperation of organizations closely aligned with USA ruling class, and they don't want to help those associated with four countries you listed enter USA. Americans don't need to put border fence, they just need to put heads of those organizations in prison forever.

just getting intelligence agents in and out without being documented.

This argument has never passed the smell test with me. The purpose of human intelligence (HUMINT) is to have someone who can go somewhere that satellites can't. Someone who can make quiet overtures to the Colonel who runs the jet propulsion laboratory at a party, or who can have a nice cup of tea with the professor who just published a paper on a 2.35% more efficient stealth coating in a university coffee shop without anyone raising an eyebrow. You know who can do that? The Russian "cultural attache" at the embassy, or the Chinese math savant on a student visa at MIT. It makes perfect sense for them to hang around people like the Senator on the Foreign Relations Committee, or the head of the Applied Robotics Laboratory at Stanford. Some random ass nobody who was smuggled across the southern border has a much higher barrier to get access to the kind of people that HUMINT is about getting access to. That someone would try to put a sleeper cell in that way makes more sense, but again, why bother? If the Chinese government decides to set up a sleeper cell in the United States, getting three husband/wife pairs green cards isn't that hard, and the old adage of "never break more than one law at a time" has to apply doubly so to spycraft. Being on green cards means the US Government is aware of their existence yes, but the drawbacks of trying to get them over the border illegally (possibility of apprehension by Border Patrol, difficulty of getting decent-paying work, possibility of deportation at the whim of the government) all outweigh the benefits.

I remember reading about a case where the soviets did send a guy in over the Canadian border. The advantage is that he's harder to track than a known foreign national. He might have been East German, but same thing.

The guy ended up falling in love with an American woman. The soviets wanted to retract him or something but he quit his spy job for love by telling his handlers he had AIDs and would be dead soon. (This worked)

https://en.wikipedia.org/wiki/Jack_Barsky

He also did a 3 and a half hour interview with Lex Fridman.

Dittrich arrived in Chicago on 8 October 1978, flying in by way of Mexico, using a Canadian passport with the name William Dyson.

That is a fully general argument for never letting anyone into the country, ever (also unfalsifiable, since when you don't turn up any foreign agents you can just say they're really sneaky) Far more people enter the country legally every year, and some of them are definitely spies. If Russia or China want to send an agent into the US, they can just... put them on a plane. Give them a bullshit job at the embassy (or just overstay a tourist visa). Being "undocumented" isn't a feature for a spy. It's a hindrance.

Imagining myself as an adversary of the United States, I could covertly send unarmed soldiers across the open border, have them obtain weapons on the other side, and then attack.

Teeth of the Tiger was not Clancy's finest work.

I mean, seriously, why? Going to stage an attack on a military base with a few dozen guys using civilian smalls arms? A terrorist attack to put yourself in the top spot on America's shitlist?

Teeth of the Tiger wasn't written by Tom Clancy, it was ghostwritten and published under his brand along with 50 other books.

Most real terrorist attacks don't have a very reasonable motive, but they still happen. A lot of the time the perpetrators rationalize that they are trying to provoke an overreaction, but that rarely works out. Although recent events in Israel may be a partial exception.

Anger makes violence seem more pragmatic than it is, famously.

It seems to me that the obvious offramp is for Texas to simply do nothing, wait for the feds to start tearing down the fences/wire, and then film them doing it. With the purposes of making sure the footage is seen in every state during every commercial break from now till November while also redoubling the bussing efforts.

It seems to me that the Feds don't really have a winning move here as anything other than letting Abbott have this one seems more likely to blow up in their faces than to stop Abbott.

Yes, if you are Biden you take the L here to avoid a massive L. You already imported a massive voting bloc. No need to run it up prior to 2024

The US feds seem to be backing down, apparently they're not going to clear away the barbed wire. Is this a tactical retreat or an operational pause?

On the one hand, they might try again in a couple of weeks when everyone has forgotten and the media's moved on. Or they could use other methods to facilitate illegal immigration that divert around barbed wire.

Alternately, it is a bad look in an election year, it might make sense to slow down now. As far as demographics are concerned, time is on their side - well over half of Under-15s are non-white and that number is still rising. Reducing inflow doesn't matter so much, as long as Republicans aren't able to execute a huge expulsion and re-emigration operation, Democrats/Progressives will enjoy permanent electoral/demographic dominance. In terms of voting, the key thing is race - whites tend to vote Republican, non-whites hugely favour Democrats. This is a perfectly rational strategic decision, Dems favour the expansion of social welfare, redistribution, multiculturalism and affirmative action, which usually favour non-whites over whites. Either the Republicans will move to join them, or they'll become irrelevant.

As far as demographics are concerned, time is on their side - well over half of Under-15s are non-white and that number is still rising. Reducing inflow doesn't matter so much, as long as Republicans aren't able to execute a huge expulsion and re-emigration operation, Democrats/Progressives will enjoy permanent electoral/demographic dominance. In terms of voting, the key thing is race - whites tend to vote Republican, non-whites hugely favour Democrats. This is a perfectly rational strategic decision, Dems favour the expansion of social welfare, redistribution, multiculturalism and affirmative action, which usually favour non-whites over whites. Either the Republicans will move to join them, or they'll become irrelevant.

Is the idea here that the migrant flows at the border are a result of a deliberate strategy to stack the electoral deck in favor of the Democrats? Illegal immigrants can't vote. Hell, legal residents can't vote. I know lack of voter ID laws would make some amount of illegal voting possible, but the implication here that this is a big coordinated effort to gain and maintain federal power via illegal immigrants' votes strikes me as a bit far-fetched.

Probably what's more likely is the usual sclerosis of the federal administrative apparatus (favoring the status quo, whatever it may be), combined with the very strong negative political polarization we have (that leads to legislative deadlock - don't want to give the other guys a win on an important issue), plus a bit of an influence from the true believers, the multiculturalism and open borders people who probably do see the firm securing of the border as a moral failure. Is this not enough to explain what is happening?

Is this not enough to explain what is happening?

I used to hang around a highly-SJ forum. I do recall at least some gloating over the possibility of Texas turning purple due to mass immigration and immigrants' children. Necessary or not, that's direct evidence that at least some SJers do recognise the "demographically-significant immigration flow -> Democratic electoral victory" causation and cheer it on.

You are correct that there are other reasons for them to favour the policies they do, but this isn't exactly a fully-unintended side-effect either.

  1. Places are moving to allow illegals.

  2. You can’t ask for pretty much any info. It would be relatively easy for illegals to vote.

  3. Illegals kids will vote.

Illegals’ kids voting is something that can only be stopped by constitutional amendment re. birthright citizenship.

In general it seems unlikely that illegals vote. The American citizen underclass already very rarely votes, and illegal immigrants often believe enforcement is much, much harsher than it actually is. Why would a penniless Guatemalan illegal vote? To their mind it’s a risk for zero real benefit, they don’t know much or anything about American politics, and their sole goal is to stay under the radar to not get deported. They don’t conceive of any kind of civic duty, and their knowledge of American politics will be very minimal, they don’t know where their local polling place is, and they probably have neither the time nor the inclination to visit it.

Like most Americans I’ve met my fair share of likely-to-certainly illegal immigrants, and I find the suggestion they’d vote in elections pretty ridiculous, not out of principle but for many more practical reasons. There are maybe 15 million of them, so surely a few have, but I find it hard to believe it was many.

Illegals’ kids voting is something that can only be stopped by constitutional amendment re. birthright citizenship.

So, crazy legal position alert, but I'm not sure that's entirely true. Yes, I'm aware of the standard view that Wong Kim Ark declared birthright citizenship as inviolable Constitutional law, but I actually don't think it's that clear.

One can start with Elk v. Wilkins. John Elk was born on a reservation, but the case had approximately nothing to do with physical location. I’m not sure that anyone would think that it would have come out differently if his parents had left the reservation briefly to, say, have his birth in a particular hospital. Instead, it was entirely about political allegiance - his political allegiance was to the tribe, not the United States, even though he had left the reservation as an adult and spent much of his life in the US "proper". Much of Wong Kim Ark discusses political allegiance, as well. AFAICT, the rule they embraced was, “Political allegiance has something to do with it, but we think that the only cases that are clear are foreign ministers (not consuls, though, for complicated weird reasons) and invaders (huh, that word again)... oh, and Indians are weird, yo.” Were there reasons for the court to think that the case in front of them should not be excepted? They cite The Schooner Exchange v. M’Faddon:

The reasons for not allowing to other aliens exemption “from the jurisdiction of the country in which they are found” were stated as follows:

When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign counties are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter can never be construed to grant such exemption.

In short, the judgment in the case of The Exchange declared, as incontrovertible principles, that the jurisdiction of every nation within its own territory is exclusive and absolute, and is susceptible of no limitation not imposed by the nation itself; that all exceptions to its full and absolute territorial jurisdiction must be traced up to its own consent, express or implied; that, upon its consent to cede, or to waive the exercise of, a part of its territorial jurisdiction rest the exemptions from that jurisdiction of foreign sovereigns or their armies entering its territory with its permission, and of their foreign ministers and public ships of war, and that the implied license under which private individuals of another nation enter the territory and mingle indiscriminately with its inhabitants for purposes of business or pleasure can never be construed to grant to them an exemption from the jurisdiction of the country in which they are found.

You can start to see how there might be room here. There’s still a linkage between jurisdiction and allegiance, but it’s not entirely clear how it operates in all cases. They’re imputing a temporary allegiance to common travelers, but even this stems from “the implied license under which they enter”. It’s squishy. There are indicators that go the other way, too.

Further, I should note that the majority opinion was clear about the fact that they were engaging in a common law approach to this question (while taking some guidance from the above-quoted statute using the language “not subject to any foreign power”). There’s a lot of squishy room here, which is why the same folks who would call it an invasion for purposes of A4S4 would want to call it an invasion for the question of birthright citizenship – they're essentially saying, “We recognized two cases that were clearly problematic from the perspective of political allegiance; I think this a third.” And I’m not sure that there’s any super knockdown legal argument against that. In fact, if faced with a statute saying, “Illegal aliens are on this side of the political allegiance line; we clearly and obviously have not given them any implied license to be here whatsoever,” rather than engaging purely in a common law exercise, I’m not sure how the Wong Kim Ark Court goes. (They had a statute saying that he couldn’t be naturalized, but that’s clearly different.)

I've heard similar arguments before. Trump promised to end birthright citizenship in 2016 and again in 2018 by executive order (which would presumably lead to the inevitable SCOTUS challenge), but never did. He promised to do it again last year and the year before, but again, it seems that even the Trumpist wing is resigned to the fact that it's unlikely anyone but Thomas and maybe Alito would support the repeal.

I think it would definitely be a heavy lift with SCOTUS. I then have an unfortunate thought, that if it's just an EO, SCOTUS probably shuts it down... but if it were an actual, no bullshit statute passed by the full Congress, it might have a legit chance. Of course, I doubt that will happen anytime soon, but in this same thread, I also tried considering the legality of Congress just passing a statute declaring that the borders must be open, so I am a sucker for these sorts of, "What is the actual limiting principle," questions.

I agree that I think there’s a chance a conservative SCOTUS majority accepts a law that passes congress abolishing birthright citizenship, but I think that’s the only way it happens (short of constitutional amendment).

Enter VBM and activists getting illegals to sign things they don’t understand because the activist is…otherwise helpful

If you’re running an operation in which people show up at polling stations, declare they’re citizens under false identities and vote under false pretenses then you have no need for illegals and are in fact best served by using ideologically committed fellow activists who definitely won’t sell their story or give you up for nothing if caught.

If you’re running an operation in which people show up at polling stations,

If you wanted to use illegal migrants in a voting scheme, why would you ever bring them to a polling station?

Ballot harvesting has far fewer oversight and procedural control mechanisms.

If you're ballot harvesting the votes of illegal migrants, what's the difference between doing so and just making up names? Why do you need a real life illegal immigrant to register to vote illegally when, by definition, the illegal alien won't have a legitimate SSN, won't have a legitimate birth certificate and so won't have a legitimate (non AB60 or equivalent) license? Of course many have fakes of the above, but if you're just registering fake voters for such a ballot harvesting scheme the illegals themselves are unnecessary in that case. You might as well have your own citizen activists register or vote as dead people, vote multiple times, impersonate others etc. which hugely minimizes the risk of the plot getting out.

More comments

Illegal immigrants can't vote. Hell, legal residents can't vote.

They can increase the votes of people living in the neighborhood.

The idea is that illegals have children at a higher rate than natives, and that 95% of those children vote D, so the democrats are intentionally engineering the electorate 20+ years out.

I get that but the idea that the Democratic Party, an organization so weak and disorganized that it's allowing a uniquely unpopular incumbent who is widely seen as a doddering old fool even by many of his would-be supporters to run against a uniquely weak candidate (Trump) who could be easily defeated if the Democrats got it together and tapped almost anyone else to run against him... the idea that this organization is able to not only look this far down the game tree, but also set this long and complex chain of events into motion so that if all goes well, in 20 years they will finally win all of the elections ... that idea, seems unrealistic.

That's because it wasn't the current Democratic Party who set this up and got the program started. The roots of the immigration crisis that America is in right now go back to Hart-Celler at least.

If you want unlimited migration from Central America then Texas is unnecessary while deep blue California and New Mexico exist.

What Abbott does may - if extremely successful - have a minor impact on where some migrants initially settle in the US. But it will have no impact on the long term demographic trajectory.

This case is mainly interesting because it provides a glimpse into how grandstanding blue state governors like Newsom will treat a second Trump presidency: they’ll ignore it and defy it without consequence.

What Abbott does may - if extremely successful - have a minor impact on where some migrants initially settle in the US. But it will have no impact on the long term demographic trajectory.

...Are you operating off the assumption that Abbott's goal in this general offensive is to fix illegal immigration? [EDIT] - to be more specific, that Abbott's goal is to fix illegal immigration by controlling the border of Texas?

The US feds seem to be backing down, apparently they're not going to clear away the barbed wire. Is this a tactical retreat or an operational pause?

Biden needs feds he can trust, and CBP (based on that union letter) isn't it. He'll probably send another group.

Other than assuming command of the national guard, what other federal entity would have a statutory mandate in this circumstance?

I know the obvious retort is "it doesn't matter and he'll just invent a legal fig leaf", but I'm interested in what existing options might exist that don't require novel legal theories.

He could send US Marshalls, to enforce the Supreme Court order. He could federalize and send any state national guard (not necessarily Texas's) in under 10 U.S. Code § 12406(3) (execute the laws of the United States), or more aggressively 10 U.S. Code § 12406(2) (rebellion or danger of rebellion). He could use the literal Army under 10 USC 332 (unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States). There's really no barrier here. I expect he could probably use the DEA or FBI or ATF on some pretext too.

You're right that Biden doesn't have a winning position going against immigration crackdowns at the moment.

But when you're in a losing position in politics, your options are either to change your position, or change the conversation.

The 'children in cages' narrative was a big win for Democrats on immigration, even if the policy wasn't much different from what Obama was already doing. Drawing attention to the bad parts of the system while your opponent is in charge of it, getting some good pictures about it to go viral, shaping a narrative and conversation on the issue that centers those bad parts and nothing else, that's how you flip enough people that the issue s in your favor again.

'Razorwire' has such a cruel sound to it that it's appealing as a possible fulcrum to do that again. If reporters could get a few pictures of immigrant children with gashes over their hands an faces (unlikely unless staged, but who knows), or Texas border guards getting into a shootout with a migrant caravan where a kid gets winged, or whatever, then Dems could flip public opinion again real fast.

Painting Texas border security as cruel and fanatical is a prelude to something like that showing up, prepping the narrative to look for stuff like that and pounce on it. Or if nothing like that ever does pop up, it may still serve as an inferior but sufficient narrative all on it's own, if heated up with a clash between state and federal agents, and tied to Trump's 'fascist' vision for America when he inevitably comments.

One off ramp is that Texas moves their measures back 100' or so and allows CBP to reach the federal border.

I don't think Biden would fight them over that so long as they moved off the border and kept any future enforcement on the right side of AZ vs US.

One off ramp is that Texas moves their measures back 100' or so and allows CBP to reach the federal border.

Letting CBP keep the border open while sitting behind a wire 100' away? Why bother then, just go home.

It's not much different to having a border in Texas and leaving the border in many surrounding states wide open, which is part of the reason why immigration enforcement is only viable as a federal policy, for better or worse. For the states to even be able to make a dent, all border states would have to pursue a border security compact. California and New Mexico seem unlikely to join, to say the least.

only viable as a federal policy,

Why? Other states could e.g. cut off power to Cali if it doesnt block the border. You only need the border states on board. Massachusetts doesn't matter ..

In effect that’s a dissolution of the post-1865 compact. “Only viable” should be understood as “only viable without the effective or real breakup of the US as a single, centralized nation state”.

Is the US truly a centralized nation state when you have had cities ignoring federal legislation on immigration for years and just getting away with it ?

Border Patrol and the Texas National Guard aren't going to get into a direct confrontation. Biden will federalise the National Guard if it comes down to it.

Biden will federalise the National Guard if it comes down to it.

Abbott ordered NG to disregard that during the crisis says feds failed to protect the border. _Read the damn letter, it's all over the place.

https://pbs.twimg.com/media/GEoj3cMXQAA27_8?format=jpg&name=large

Surely Abbott doesn’t actually believe that declaring an invasion allows him to unilaterally ignore the federal government? That would be a unique reinterpretation of the post-1865 reality of federal authority.

Abbot is a constitutional lawyer. He knows what's legal and illegal and he knows that letter is sovereign-citizen tier. But he's also a politician who's read his Hobbes and knows what he can get away with.

Is he still out of the country? If so, he might get a bit of a surprise when he returns.

Why wouldn't he?

https://www.rga.org/republican-governors-ban-together-issue-joint-statement-supporting-texas-constitutional-right-self-defense/

Also 25 Republican governors are backing Abbott.

I know you described the situation correctly, but I want to emphasize this point because it was not obvious to me when I first heard about this story: Texas is not directly defying the Supreme Court. The Supreme Court did not order Texas to do anything. The Supreme Court refused to uphold an injunction against the Federal Government, i.e., they said that Texas can't order the Federal Government to stop cutting wires. It's a distinction without a difference, but a big difference.

Still, if you had presented me this story a month ago, I would have guessed Texas would have backed down already. So I'm moderately surprised this is being fought. I'm still pretty cynical about a lot of Republican politicians, but maybe there's something a little deeper going on here.

WH gave them a deadline y-day, until saturday , stop blocking access to Shelby Park or else.

Yeah, it's not even as close as the rental emergency thing, but it's still a lot closer than I like or I expected Texas or Abbot to be willing to fuck with.

I think the combination of this decision and one-off current events could be a motivator. I've pointed to other cases where someone could have turned True Believer, but while guns give the obvious approaches and reasons, there's a lot of ways a repeat offender who was also an illegal immigrant could become extremely prominent to a politician's mind.

Texas is standing up because they kind of are actually defending themselves against an invasion right now. Several hospitals are basically only serving migrants and aren't being compensated. They are threatening to shut down and leave the state. Biden has no political leg to stand on, and only a thin legal leg that there are 4 strong votes on SCOTUS to kick out from under him, and 2 questionable votes.

Er, Biden has a very strong legal leg to stand on. It's not an invasion, it's illegal immigration. The current situation is different in scale to what has happened continuously for many decades but not conceptually. I understand the desire to rhetorically brand the situation an "invasion", but it's not actually what it is. October 7th is what an invasion looks like.

The federal government does in fact have the legal authority to administer immigration law. That the current one is doing so very badly does not change this.

It's not an invasion, it's illegal immigration.

It's more of an invasion than Jan 6 was an insurrection. A govenment brininging in foreigners to prop up their domestic power is usually considered colonization, that might be a better term.

The federal government does in fact have the legal authority to administer immigration law.

The situation is a little more complex than that. Imagine if Trump were President. The courts would never rule that the executive branch has unlimited power to interpret and adminster immigration law without review.

However the current administration of immigration law by the Biden admin isn't consistent with the laws congress has passed. However the courts and legal class generally support what Biden is doing.

They don't want to give him carte blanche power. They don't want to stop him, or are at least afraid of pushback from the legal establishment.

So what do they do?

So far their answer has been to use standing to block any lawsuits. Things are going to get interesting if Texas can force the Feds into court.

Er, Biden has a very strong legal leg to stand on.

I don't think Biden and Garland's case here is nearly as strong as people keep saying it is.

The White House's argument rests entirely on a single assumption. Namely that it is illegal for a member of a Municiple or State Police force to enforce federal laws, Ditto military police (who are ordinarily considered federal cops) attached to the National Guard unless their command has been federalized and explicitly ordered to do so by the president.

That's not something that's actually written in a statute anywhere, it is an assertion being made by White House based on the preemption doctrine. It is not clear to me that Texas making it a state crime to violate federal immigration law as a pretext to use State Law enforcement and National Guard to erect fencing and make arrests is actually prohibited by the supremacy clause. And it is not clear to me that it even violates the preemption doctrine because in theory there would have to be some discrepancy between the law as passed by congress and the law as enforced by the state in order for it to do so and federal immigration laws are still on the books.

The White House's argument rests entirely on a single assumption. Namely that it is illegal for a member of a Municiple or State Police force to enforce federal laws,

Not really. The actual case being litigated (see briefs) is much simpler, although this is confused because both sides appear to be arguing in bad faith. The Feds want to be able to cut the wire, Texas opposes them. The instant litigation isn't about what happens to the immigrants. If Texas authorities started doing what they say they want to do (i.e. summarily returning border-crossers who are mostly not Mexican to Mexico) then there would be a whole extra layer of litigation.

The Feds' position is that black-letter law gives the Border Patrol the right to enter private property within 25 miles of the border in the course of their official duties, and that cutting the wire is necessary to do so expeditiously. Texas's position is that they have a property right in their barbed wire. Given the facts (critically, that Abbott has made no secret of the fact that he wants to exclude the Border Patrol from Shelby Park) this is an easy win on the law for the Feds.

Historically this is invasion. The Romans never would have let millions of migrants enter their territory and use their resources. They would have slaughtered them.

If I open a dictionary this fits many of the definitions you will find. I’m sure in about a week all those definitions will be modified to make sure invasion only means with guns.

We also frequently use the word “invasive species”. Those aren’t species using force to enter a new environments. Often their species that lack predators and therefore grow uncontrollably.

So often a debate does come down to the definition of a word.

I would note you I believe think Trump committed insurrection on Jan 6. In many ways this is very similar but I do believe the gap between: Trump gives speech causing riot is the meaning used by 14th amendment rioters as an insurrection is much larger than the gap between the definition of invasion constitutional writers used and what is occurring at our southern border.

This just comes down to how stretchy are the words invasions and insurrection.

The Romans never would have let millions of migrants enter their territory and use their resources.

...they did.

In any event, it's not really clear why we should consider the Romans a model for behavior.

So often a debate does come down to the definition of a word.

"Invasion" rhetoric is classic Motte-and-Bailey equivocation. Nativists want to borrow the alarming connotations of the word to hype up support for radical measures, then, when their critics point out that there's a slight difference between people making dodgy asylum claims and an armed force sacking El Paso, fall back on "invasion has other meanings". If Latinos are "invading" like Japanese tourists, the claim becomes a lot less exciting.

...they did.

When? If you are talking about the resettlement of the German tribes inside imperial borders, they only did that after smashing them in battle and disarming them. Sometimes they would skip the smashing in battle bit, but there would always at least be a negotiated settlement before the tribes were allowed to move into the empire uncontested. Towards the end of the empire they stopped disarming the Germans, but that was definitely not by choice, it was because the empire was falling apart.

they only did that after smashing them in battle and disarming them

Check

I think it’s a lot more than a motte-Bailey.

It’s also a legal term to deal with a real issue. So the definition matters because it is in the constitution. And winning the definition means having jurisdiction and the ability to fix a real problem. Sure having he Mexican Army bombing Houston isn’t the same as immigrants but in both situations the law provides real remedies to the lack of federal action. Texas has a need to defend themselves either way.

The end result of invasion of the Mexican army attacking or migrants is the same. Either situation threatens the sovereignty of Texas and the loss of territorial control.

The end result of invasion of the Mexican army attacking or migrants is the same.

Even if that's true (which is a big if, one I disagree strongly with), the end result isn't all that matters. Invasion requires intent as well as results.

Surely if interstate commerce includes non-interstate non-commerce, invasion includes immigration.

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You don’t think this invasion has intent?

There are plenty of NGO’s facilitating transport to the border.

Results? We are already set to be a majority minority country and all that entails as far as control of governance. Plus 6 million new inhabitants since Biden took over. That seems like a result.

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Historically this is invasion.

The federal government is going there with forklifts and lifting up the wire to facilitate their entry. That's a bad policy choice, but it's also clearly a choice. Never mind the lack of force, these people aren't even violating a "please stay out" sign. They're being welcomed in.

It's irrelevant that the Romans wouldn't have allowed it. The Democrats are allowing it, and they are the government.

At least with Am14S3, there is a requirement that an individual "engaged in" insurrection, yet even there, we have briefs by eminent Constitutional scholars submitted to the Supreme Court saying that it is sufficient for Trump to have simply done nothing to stop it. A4S4 doesn't speak to any individual engaging in the invasion, helping it along, or being passive to it. What people in the US are currently doing WRT a possible "invasion" simply has no bearing to the current question of whether it is, in fact, an "invasion" according to the Constitution. The conclusion of that question would have implications as to what certain folks are supposed to do, but that someone is or is not doing what they are supposed to do is not dispositive on the question of what the word means. For example, if we saw the government performing unconstitutional searches as a policy choice, we wouldn't say that it must be the case that those searches don't actually fall under the Constitutional definition of a search. We'd just say that they're doing a thing that they're not supposed to be doing. It would be similarly silly to say that Jan6 couldn't meet the definition of insurrection if Trump made it a policy of the gov't to let them into the Capitol.

To be clear, I'm not taking a position on whether it is or is not an "invasion". That would require different analysis.

At least with Am14S3, there is a requirement that an individual "engaged in" insurrection, yet even there, we have briefs by eminent Constitutional scholars submitted to the Supreme Court saying that it is sufficient for Trump to have simply done nothing to stop it.

That's true, but let's be blunt: that's not an opinion those scholars arrived at based on an impartial reading of the Constitution. It's motivated reasoning which stems from the fact that they really don't like Trump and want to see him go down regardless of whether he deserves it. It's not an example to follow.

I do think that the historical evidence is strong that the original public meaning of "engaging in insurrection" was broad at the time that the 14th Amendment was adopted. E.g. Andrew Johnson's Attorney General issued an opinion on section 3 that said "...where a person has by speech or by writing, incited others to engage in rebellion, he must come under the disqualification". And Johnson was of course an opponent of the 14th Amendment.

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No the democrats are not the government. Biden is the executive. He is arguably (weasel word) failing his oath of office.

Inaction is almost certainly not justiciable but there is a real political argument that Biden’s policy is ultra vires and therefore not an action by the government.

Again an invasion doesn’t require use of force by many dictionary definitions. Nor does the constitution explicitly define invasion as by force.

Like I said invasion is like insurrection. Both have some stretchy meaning.

What's your principled reason for adopting a narrow definition of insurrection and a broad definition of invasion?

  1. It serves my politics
  2. I hope my reasoning isn’t motivated reasoning and I’m making distinctions for good reasons
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The federal government is going there with forklifts and lifting up the wire to facilitate their entry. That's a bad policy choice, but it's also clearly a choice.

It's a "policy" of directly facilitating mass violation of federal law, the previous "policy" of refusing to enforce the law for decades having been found insufficient. It is yet another in a long list of absurd violations that discredit any conception of rule of law in this present "nation".

I think Abbott should keep shipping the migrants to New York and other 'sanctuary cities'. If they have no problems with uncontrolled border crossings, they should have no problems if those migrants keep right on crossing all the way to their doorstep, right?

It's a bad situation all round; do the Democrats want to do anything about illegal immigration, or are they happy to let the border states deal with all the people streaming in and needing resources, and they can just keep it as a political point about "we're compassionate and pro-minority, unlike those awful Republicans, (but don't ask us to have those people live next door)"?

Enforce the border, or pour more resources into providing hospitals etc. and keeping track of who turns up and where they're going. As it stands, it's a mess and nobody's reactions are doing any good.

As it stands, it's a mess and nobody's reactions are doing any good.

I disagree,

In fact I would argue that Abbott has decision making throughout this mess has been consistently good/correct from both a legal/game-theoretic perspective and a Christian/Moral one.

From a purely legal standpoint the White House's case is much weaker than it's being made out to be as, in theory at least, in order for the supremacy or preemption clauses to take effect there would have to be a meaningful discrepancy between the law as passed by congress and the law as enforced by state officials. Those laws are still on the books even if the Feds aren't enforcing them.

From simple "good governance" perspective Abbott is representing the will/interests of his constituents.

From a Christian perspective helping those who wish to migrate reach places where they will be welcomed and cared for (IE those cities that have declared themselves to be Sanctuaries) is an act of charity.

Finally, from a game theoretic perspective offloading the costs of a policy onto those who support said policy is just the obviously correct move. That Democrats have reacted badly and are now throwing a temper-tantrum does not change the fact that Abbott and the wider Texas Legislature has acted well.

Edit: I keep forgetting that there are 2 't's in Abbott

I think Texas does have a right to protect its border, I think that the stream of migrants into the USA over the border in this fashion is not tenable, and I think successive governments have done nothing about it because, to be blunt, it's the rednecks down south that have to handle it, we can just posture about being "in this house we believe" without having to put our money where our mouth is. As I've said before, when it was migrants turning up on their doorsteps, the "in this house" types couldn't get shot of them fast enough.

But as it stands, everybody is being failed. Discussion on this thread about civil war, executing the governor, secession and who knows what else? That's fantasy talk and is not addressing the real, concrete problems. The courts can fight it out over who has more authority - states rights with the federal model meaning each state can govern itself, or the national government over-rides that.

But when it's "we have thousands of people who have to be managed somehow - keep them, send them back, what?" then some kind of action is needed that is not posturing, cosplaying Civil War II, or making presidential campaign hay out of it. I think Abbott's busing the migrants was clever and impactful, but the 'will Biden send in the troops, nationalise the Guard, or what?" speculation isn't doing anything to help right now.

If "no human is illegal", what do you do with everyone who turns up and keeps turning up? Is it fair to ask the same cities to take care of them? Is it okay to let them disseminate throughout the USA with no records or monitoring of them? Is your country going to throw up its hands and say "Okay, if the various countries of South America are failed states, we'll absorb your populations?" I don't think that last can work in any way whatsoever, but as the situation is right now, that's the de facto situation.

Is your country going to throw up its hands and say "Okay, if the various countries of South America are failed states, we'll absorb your populations?" I don't think that last can work in any way whatsoever, but as the situation is right now, that's the de facto situation.

It could work if we dropped the welfare state, but that ain't going to happen either.

Okay, if the various countries of South America are failed states, we'll absorb your populations?

They aren't. Venezuela, Haiti, and arguably Mexico are failed states, and Mexico has been adjudicated as safe by US courts. Ecuador and Nicaragua are also deeply unpleasant places to live right now in a way that they weren't before.

But, a migrant from Venezuela to the US border passes through three safe, stable middle income countries(Columbia, Costa Rica, and Panama), then some poor but not unstable countries, then Mexico, then reaches the US border. And statistically few of the migrants are from Mexico; they're mostly from South America. The "nearest safe country" for these people is mostly Columbia or Brazil.

But when it's "we have thousands of people who have to be managed somehow - keep them, send them back, what?" then some kind of action is needed that is not posturing, cosplaying Civil War II, or making presidential campaign hay out of it. I think Abbott's busing the migrants was clever and impactful, but the 'will Biden send in the troops, nationalise the Guard, or what?" speculation isn't doing anything to help right now.

Texas' law allowing state level deportations takes effect in March. In all likelihood Greg Abbott will wave around the past week's events to the troops when he ostentatiously ignores the supreme court's declaration that US v Arizona renders it unconstitutional.

Venezuela, Haiti, and arguably Mexico are failed states

Venezuela and Haiti, I can definitely see. But I used to see Mexico always brought up as "doing decently" for Latin American standards. Why do you say it's arguably a failed state?

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The Arizona case that currently is the most relevant precedent was made on the thinnest of grounds and is ahistorical. And states, traditionally, had the power to reject foreigners, particularly the indigent. Precedents beggining in the 1960s are against this...but the Warren court is notoriously wrong about all things.

Also, the invasion/immigration thing is obviously a question of fact and law to be subject to intense argument and scrutiny if ever litigated. I don't think anyone in the federal government wants to be calling witnesses to the stand about how 5000 people a day crossing the border, more or less unvetted, through cartel territory, is actually technically immigration not an invasion. It looks like an invasion to a large % of the populace. It is an invasion in the practical sense that the people abetting it ( Biden) seek to use it to change the populace of the nation. Its a total landmine for that side. While the Abbot side is simple and good for him, at least until the point where he loses on a technicality (not guaranteed) and then calls Roberts a loser who sucks big donkey dick.

I guess my question here is, if congress passed a law saying that, "The United States shall have open borders. The free entry of persons into the United States shall be presumed to be lawful unless proven otherwise," would that law be unconstitutional under Article 4 section 4? It would be a bit strange for the federal government to not have that power at all, but that would mean that the free movement of large numbers of people across the border isn't inherently an invasion.

I don't know if the best argument for that would be that it violates A4S4. Perhaps better would be to ask which provision of the Constitution authorizes them to pass such a law. A1S8 authorizes them "To establish an uniform Rule of Naturalization", so they could presumably, with the aid of any one state, declare that literally every person on the planet is naturalized, making it illegal for a state gov't to turn them away. Best as I can tell, any direct control over border interactions is much more subtly read in, with the type of reading depending a bit on the theory.

E.g., one might say that the ability to exclude people from entering your territory is inherent in sovereignty. That's a completely plausible way to get to the federal government's ability to enact laws restricting immigration, but in the US, states are also separate sovereigns, so they would presumably also have such rights. In this case, the feds wouldn't have all that much ability to tell the states that they have to have fewer restrictions.

Alternatively, one might frame it as the ability to exclude or to welcome in people being inherent in sovereignty. As such, it would set up a massive clash of the Supremacy Clause with the doctrine of equal sovereignty. Those types of cases tend to turn on the opinions of a small number of Justices feeling out how they read the "structure" of the Constitution, which is always a murky endeavor.

It probably would be fine, but under Article 1-10 that would not be enforceable against any state utilizing its police powers. The framework, I think, intentionally leaves this power to both sovereigns as the founders presumed each would be corrupt, corruptible, and/or incompetent at any time, and thus they would work to check each other, as appears to be happening with Texas' actions. I think there are indications in the drafting discussions, federalist papers, etc that this is a non-justiciable question.

So it's on "thin legal ground" and by that you mean it's actually within precedent but you argue that precedent is ahistorical and hence not good law?

I mean, even I disagree with some parts of AZ vs US (in reality, it wasn't a uniform thing, the challenged Arizona law had a bunch of different provisions that I think merit individual analysis w.r.t both the powers of, and actions by, Congress, but I disagree), it remains precedent.

I don't see where the offramps are other than Abbot backing down.

At some point federal agents could arrest state national guardsmen. If they're afraid of forceful resistance, just send the arrest warrants to the guardsmen's home addresses. They can be physically handcuffed after the "crisis" is over. I doubt many people are willing to risk their freedom to defend Abbot's showmanship.

This is an unnecessarily antagonistic way of going about it; Biden can simply federalise the National Guard units and give them new orders. He can even order them to take down the wire themselves.

Alternatively...Biden could enforce the border. I know it sounds crazy, but at this point its a political win for him to work with Abbot.

Yeah on an object level it's insane that Biden is fighting to remove barriers to illegal immigration.

I recently read a Todd Bensman post that dropped the last puzzle piece in place. The Biden administration's illegal immigration policy (or lack thereof) just spent November and December in the spotlight, with even traditionally sympathetic media outlets raising eyebrows at the magnitude of border crossings and highlighting uncomfortable results in opinion polls. A handful of diplomatic meetings between the US and Mexico took place in late December, and in the opening weeks of January the Mexican government suddenly found an urgent need to shut down La Bestia, a train route traveling from Guatemala to the US border (technically with a "layover" in a Mexico City freight yard), and the primary corridor of illegal immigration from Central America for the entire Biden administration. Migrants are now being bussed to Villahermosa with increasing frequency and urgency, hot on the heels of the US diplomatic visit. Longitudinal flights from Piedras Negras (across the border from Eagle Pass) restarted concurrent to the diplomatic meeting (PDF, see last two pages - by migrant advocacy group Witness to the Border, so it's only an estimate, but probably close to accurate, especially for obvious signals like restarting known longitudinal flights). The Matamoros/Brownsville migrant camps were bulldozed at the end of December. There's a lot more actions taken in the last few weeks, but the upshot is that border crossings are way down, shantytowns aren't on nightly TV any more, and record-setting border crossings are momentarily a thing of the past.

I saw threads for the last two weeks wondering about Abbott's possible motivations. I believe comments like this illustrate the reason. The Biden administration is taking measurable steps to halt the flow of illegal immigrants (up to you if it's a genuine change of heart or just cynical ratings management), and the results have been observable. By picking a fight with the federal government now, Abbott shifts the frame from "the Biden administration is making measurable progress reducing illegal immigration" to "the Biden administration is fighting to make illegal immigration easier," which at a soundbyte level is a win for Abbott. Any subsequent moves the Biden administration makes to reign him in just turn into more headlines for Abbott, adding up to a serious perception problem at election day against Donald "Build The Wall" Trump. Consequently, the Biden administration wants to avoid escalation, and now they have a ruling in-hand that undermines any object-level obstruction by Texas without actually compelling Texas to do anything different.

That's really interesting but considering the sheer number of crossings we saw in the first 3 years of Biden's administration and the way they very publicly undid as many of the previous administration's immigration restrictions as they could, I'm not sure it moves the needle much for me. It's simply too little too late for any under the table actions Biden takes to change my opinion of his record on immigration as a voter, if he wanted to go that direction, it should have been done earlier in his tenure. If he'd undone most of Trump's restrictions but actually kept immigration numbers similar, I would be much more inclined to vote for him.

I agree. I don't think many voters are impressed by some kind of self-congratulatory back-patting exercise for solving a problem the administration itself is responsible for exacerbating for the last three years. I mentioned this in a different comment, but for consistency I'll repeat it here: the more I think about it, the less I think the Biden administration wants a narrative about progress, and the more I think they just want the border and illegal immigration out of the news. They're in a bad position, largely of their own making, and now any attempt to bring the numbers down just comes off as cynical optics manipulation.

The Biden administration is taking measurable steps to halt the flow of illegal immigrants (up to you if it's a genuine change of heart or just cynical ratings management)

As a voter, this seems to be an ongoing vibe from the Biden administration, and I'm not sure I like it. It feels like they're focus grouping every decision and trying to sweep tough-but-necessary decisions under the rug without actually having to make a stand on the issues. When it works, it feels pretty competent, but on several issues it's recently felt like very limp-wristed leadership when they try to claim "we're working on it" while they point generally to actions they've been intentionally hiding under the table.

Look at the shipping issues in Yemen: the administration gave out lots of "final warnings", and it seems that even when they finally decided to strike back -- after what, at least to me, comes off as an unreasonable number of shots fired at American ships to tolerate -- they did so weakly enough that they've had to repeat their attacks several times and still haven't resolved the conflict. I get that there's a suite of left-wing activists (many now protesting the administration's handling of the Gaza war) that were pushing for peace in the Houthi-Saudi war, frequently accusing the Saudi coalition of genocide, and that it broadly looks like the US is having to pick up that battle where they left off. There are people in their coalition in favor of unrestricted immigration, too. But their actions in both cases seem chosen first to limit outrage from the extreme corners of their voting bloc, and actual effectiveness is a much lower priority. If it was actually working, that'd be one thing, but I think the average concerned voter was looking for something more decisive (see Operation Praying Mantis), rather than a slowly-escalating quagmire. Similar to the Obama administration's "red lines" in Syria, it looks weak to me as an observer.

But on immigration specifically, the Biden administration came into office and specifically and publicly undid many of the policy decisions of its predecessor ("remain in Mexico", "build a wall"), claiming those were unnecessary and cruel. But here we are a few years later, and they've had to walk some of those back: they're building a wall and at least moving toward involving Mexico in the process. But they can't acknowledge that, maybe, their opponents might have been partly right on the issue (because, in a large part, of their coalition with "Orange Man Bad"). And while they claim to be working on solutions, I haven't seen anyone propose either reforming the asylum process in question. Could we surge resources to handle the backlog of cases and hear every case in, say, 24 hours? Could we increase the standards to promptly toss out a large fraction of the cases that will eventually be denied anyway? AFAIK the asylum system is entirely defined by Congress and Executive fiat and surely gives some legal leeway here. I honestly don't have any good suggestions for preventing physical crossings or handling deportations of the unwilling, but surely someone has some.

I honestly don't have any good suggestions for preventing physical crossings or handling deportations of the unwilling, but surely someone has some.

Sure.

First of all, you implement an immediate 40-year prison term that explicitly pierces the corporate veil for any hiring of illegal immigrants. E-verify? Mandatory. Second, you remove any and all sources of aid or welfare to illegal immigrants until they voluntarily sign up for deportation. Third, you go over to the NSA building and get them to run a search through their system for all the undocumented and illegal immigrants in their system. Every single one of them that is currently employed has a letter sent to their employer informing them that they're either going to fire their immigrant employee or go to prison for the rest of their life. The number of crossings will go dramatically down when there's no way to profit or sustain an existence in the US as an illegal immigrant, so you'd be able to save on the border defence as well.

But then why was Biden even fighting in the first place? Don’t litigate currently. If Abbot was just trying to set up what you believe is a political stunt to make it clear Biden is pro illegal immigration, then didn’t Biden fall right into it?

Earlier I implied that the administration wants to create a narrative about progress, but the more I think about it, the more convinced I am that they just want the numbers to go down and have everyone forget about the border and illegal immigration for a while. They don't get credit from the left or the right for reducing illegal immigration numbers: the left complains about denying the poor, impoverished families of their American Dream; the right assumes any attempt by the Biden administration to reign in illegal immigration is bad faith optics manipulation. I think at this point they're trying to stop the bleeding. I wouldn't say Biden "fell into" some political trap, so much as the administration got spooked into action by numbers and headlines they couldn't ignore, and Republicans see that kind of panic as a glowing red weak point.

Now the administration is under attack from a bad angle, and they have to respond or risk losing control of the narrative. If they had no response, this comes off as a tacit admission that the administration's border security policy has failed. As previously mentioned, over-reacting is also dangerous, since it hands the enemy obvious ammunition: "Why is Biden fighting so hard to let illegal immigrants in?" Getting a judicial ruling that explicitly negates Abbott's directives casts Abbott as a lawbreaker, and emphasizing medical emergencies portrays him as cruel, all without compelling Abbott to do anything. It plays well with the base, if conversations with friends are any indicator... prevailing left-wing opinion of Abbott can be roughly summarized as "crooked, deranged lawfare man," and pulling out "the judge said you're obviously wrong and bad" fuels plenty of sneering. Out of a handful of bad options, I think this is probably the best one.

There's also the optics of corpses piling up on the shores of a headline-news border crossing to consider. I'm sure the rank and file have enough genuine empathy in them to be alarmed and upset when Texas declares they have no obligation to rescue the injured or the dying, but this is still a pretty abstract concept - it's easy to say "people will die" without fully internalizing it. Compare with news crews finding piles of bodies and asking why Joe Biden lets Texas get away with it. That's the start of an uncomfortable conversation, and it keeps the border in the news. Now CBP has cover to keep cutting through Texas obstructions and keep the body count low.

I am that they just want the numbers to go down and have everyone forget about the border and illegal immigration for a while.

Of course they can. Slow and steady wins the race. The pace has been too rapid last couple years, cities can't cope with it, you've had schools closed to assimilate new blacks and browns.

Electing a new people can't be a too hasty affair. One needs to be patient so there's less possibility of a back clash. You need to pass hate speech laws criminalising opposition to it. Just opening the border and letting in tens of millions like in the infamous book, nah. Cinematic, but really, it's more of a decades long project.

I think Abbott has reasonable grounds to be suspicious; is this new Democrat crackdown a genuine change of heart, or will it last only until the election is over and then things to back to 'normal'? I'm not saying how he's dealing with it is the optimum way, but I certainly wouldn't accept the bona fides of any such "we are absolutely going to stop all this" campaigns by the Democrat administration, given the way "they're locking kids in cages!" and AOC flying down to cry in front of photographers happened.

Ofc it's fake.

You have democrats- some black congresswoman on video saying this migration is good for redistricting purposes and that ofc they're going to later vote for them.

And honestly it doesn’t matter — the imported voter base already happened.

traditionally sympathetic media outlets

CNN had some ownership/leadership changes in 2022 which included an explicitly stated goal of being more neutral. Whether they're a right-wing media outlet now depends on who you ask, but they're actively trying to shed their image as a pro-Democratic-Party one.

Hope and gullibility spring eternal.

Licht was fired as CNN's president and CEO in June 2023, after an article in The Atlantic revealed that employees had become unhappy with him over actions taken during his tenure.

So, that went well. Whether Zaslaw is still pushing for neutrality or not is unclear to me, but I'll grant that there's grounds to believe CNN is no longer a sympathetic media outlet.

In any case, here's the New York Times and the Washington Post. A brief Google search turned up similar anxiety across NPR, NBC, CBS, the AP, ABC, Fox (of course)... Even MSNBC started running interference in early January, and much like one can infer the rough outline of an object from the shadow it casts, here too we can infer the immigration-shaped issue from the article's calculated absence of context. Setting aside sympathies, record-breaking illegal immigration figures were inarguably headline news in December, and that's not a good look for Biden.

My cynical take on that is, did the NYT get concerned about the issue after the migrants started turning up in New York and having to be sheltered in tent cities there? It's easy to finger-wag at the terrible Texans when your city is not the one dealing with 5,000 a day coming in, but when they start doing that to the City Of Immigrants, oh my now what is the President doing about this?

Which agents? Like, the FBI or something?

I don't think you will get the CBP guys to do it, since they aren't even keen to go in and cut the razor-wire (and it's all a bit out of scope for them) and the FBI would need a federal crime of some sort to proceed on, no? I don't think the guardsmen are particularly breaking any laws at the moment -- I guess one could go ahead and arrest Abbot for sedition or something; see how that goes!

Couldn’t Abbot announce that state law enforcement would prevent federal agents from making arrests of guardsmen in that case? Obviously it would be an escalation but seems like there’s a whole ladder here with progressively more extreme rungs for both players.

Prevent them from making arrests for how long? Forever? Are they going to sleep under personal bodyguards for the rest of Biden's administration? I'm sure the federal government has some lever over the banking system to freeze payments to "insurrectionists". Who is Wells Fargo going to listen to, Texas, or the FDIC?

So, some thoughts-

First, Greg Abbott does not take stupid risks. He has thought through, gamed out, and verified his assumptions about every aspect of this scenario, and he has a backup plan in case he turns out to be wrong. That backup plan is probably not "defect to Russia", and it's also probably thoroughly planned with assets in place to activate at a moment's notice. My first thought is "the shooting starts and we take over the pantex plant", but that seems overly dramatic. It seems very plausible that he has a plan to crash the grid in much of the country by cutting off natural gas shipments, and that would explain his timing this for January when late summer gives him political cover. It also seems implausible that support from other republican governors wasn't arranged before releasing a letter essentially claiming the federal government has lost the mandate of Heaven and so Texas doesn't have to listen to the supreme court; the twitter DR is claiming responsibility for convincing them all to throw in with him, but just think about that until you realize why it's probably not the case. At the very least, Stitt, Desantis, and Youngkin were probably in on it. I would not be surprised if there was a pre-planned border patrol mutiny or a few colonels able and willing to do something high-profile and panic-generating.

Second, Greg Abbott backing down is not going to happen unless he can cast it as a win somehow. It's unreasonable to assume the federal government will make large concessions, and the rally around the flag effect in Texas isn't proven but it's intuitively obvious. The most likely scenario to me is a high stakes standoff that goes nowhere. Federal troops shooting at state troops or arresting a sitting governor is the sort of thing that crashes the stock market when Biden's trying to treat it like so many frightened horses, so I don't expect much past posturing and defiance on either side.

Thirdly, the Friday deadline is probably China's last warning; there was a last Wednesday deadline that's come and gone too. While this assuredly represents a decline in the federal state capacity, that's the bigger story than border posturing.

Fourthly, Abbott has endorsed a series of primary challengers to accused rinos in the Texas legislature in the upcoming primary. Given that he became governor by being a constitutional lawyer with a winning record at the supreme court, he knew he was going to lose in court. The rally around the flag effect might be a benefit to him here if he's trying to get rid of enough moderates to solidify one party control over the legislature.

Further context here- https://www.themotte.org/post/824/culture-war-roundup-for-the-week/178887?context=8#context

Thirdly, the Friday deadline is probably China's last warning; there was a last Wednesday deadline that's come and gone too. While this assuredly represents a decline in the federal state capacity, that's the bigger story than border posturing.

The funny thing about calling it China's last warning is that the PRC is assuredly watching for signs of chaos in the USA.

Well yes, they definitely are, and I'd have pointed to debt shenanigans as a bigger concern to their "watching for chaos in the USA" desk at Chinese state security previously to this. But there's probably some frantic intelligence reports being generated in Beijing and Moscow right now.

He's not cutting off natural gas shipments. It would be murder for Texas-based companies like Chevron who pulled out of Appalachia because of low prices, and a boon for EQT and Range Resources. The number of people in Western PA who would see their royalty checks triple (conservatively) may be enough to give the state to Biden, if he weren't already in a position to win. Drilling in the Permian and Eagle Ford will grind to a halt, and there may be ripple effects where the money's made in Houston. I'm not saying any of this would be a certainly, but it's enough of a risk that I highly doubt Abbott would be stupid enough to attempt it. He knows who butters his bread.

How can Texas physically prevent the border patrol from entering Texas? Texas doesn't have border control between it and other states, and wouldn't part of the border patrol already be in Texas anyway?

See the link I posted right above your comment; Texas seized a park that they're excluding the border patrol from access to.

How are they excluding the border patrol from it? What happens when Biden says "go in anyway"?

I suspect there would be no practical way to actually stop border patrol without the use of force, and once you cross that line you're in "I may have committed some light treason" territory.

How are they excluding the border patrol from it?

From a legal perspective, Shelby Park is owned by Texas or the town of Eagle's Pass. From a practical sense, they put up fences and parked some state humvees on state or town-owned roads.

I expect the answer is Biden says go in anyway is that Texas flinches and adds trespassing to their lawsuit, but I wouldn't want to bet a whole lot of money on that, or how it would go if it happens.

adds trespassing to their lawsuit

That's an interesting question: How would this play out if the land in question were private? Can I hang a "no federal agents allowed without a warrant" sign by my door? Even if I had a business open to the general public? Can the state apply such a sign to state land? I don't see a compelling reason why they couldn't. Is there a warrant in this case? Or an existing easement?

If nothing else, there's at least a fair amount of jurisprudence, ironically in the name of "sanctuary cities", that suggests that the Feds cannot compel the state to work with them. Which is, at least, an entertaining academic argument. Although I'm admittedly not particularly aware of the specifics in this case.

No, within such and such distance of the border the CBP doesn't need a warrant to enter private property.

Importantly here the BP agents are already in Texas, and are largely Texans who wish that Biden would let them do a better job of stopping the illegal crossings; ie. they mostly support Abbot's side of things.

So it seems unlikely that there will be any sort of direct confrontation between the BP and Texas authorities -- if Biden decides to send somebody more loyal in to cut the razor wire things do get more interesting.

Not only that, Biden has derided them over manufactured outrage. There was a still shot of a mounted CBP agent in the river with people crossing the border, with the agent spinning his reins to control his horse. The media promulgated this as "border patrol agent whips migrants." Biden personally said that the agents involved "will pay" for their actions: https://www.nytimes.com/2021/09/24/us/politics/biden-border-patrol-haitian-migrants.html

So they're really not enthused about not doing the job they signed up for, to help a President that wants them to pay for things they never did.

I don't see where the offramps are other than Abbot backing down.

The 101st Airborne shows up at the governor's mansion to arrest him for insurrection.

Biden is old, not senile. I would think arresting the governor is probably the single biggest win condition Abbot has in all of this, people gaming out crazy stuff like him shutting off the grid nonwithstanding. If he gets arrested, he has an incredibly clear shot at becoming president before 2032. Unlike Trump, Abbot hasn't actually done things that would make charges against him stick, and would be able to beat the drum of political persecution/abuse of power far more effectively.

You can't become President if you're in ADX Florence awaiting execution on a treason conviction.

Unlike Trump, Abbot hasn't actually done things that would make charges against him stick

It's just the other way around. Trump has done nothing but engage in lawfare and run his mouth, and the Democrats have largely successfully memed it into insurrection. If Abbott defies Federal authority with force -- and he's come close but hasn't yet -- he actually has committed insurrection.

As a Texan who has been a lifelong democrat voter, arresting and charging Abbot with treason over this would force me to swallow my dislike and vote straight ticket republican for a decade until he gets pardoned. I tend to thing I'm not alone in this, and that Biden's pollsters know it. Is Abbot in the wrong? Yeah, probably. But arresting a sitting governor who is toeing the line of the letter of the law is not the appropriate escalation for this. Charging him with treason is beyond the pale. It's a huge escalation and a violation of the principles that allow us to maintain a civil society. We didn't execute governors when they were fighting for segregation, and I really doubt we're about to start now. I'm already iffy on what's going on with Trump, and he did blatantly attempt to abuse his authority to convince his subordinates to subvert state certifications.

The appropriate escalation here is judicial and administrative remedies, what Biden is currently pursuing. It might be slow and cumbersome, but it avoids tearing our society apart, which is the whole reason we have a federal government in the first place.

As a Texan who has been a lifelong democrat voter, arresting and charging Abbot with treason over this would force me to swallow my dislike and vote straight ticket republican for a decade until he gets pardoned.

So? Even if your state retains electoral votes rather than being involved in a mini-Reconstruction, Texas was Red anyway.

But arresting a sitting governor who is toeing the line of the letter of the law is not the appropriate escalation for this. Charging him with treason is beyond the pale.

The Democrats have already demonstrated they're willing to go beyond the pale.

I'm already iffy on what's going on with Trump, and he did blatantly attempt to abuse his authority to convince his subordinates to subvert state certifications.

Which is a lot LESS than ordering troops to defy Federal authority, which is just about where we are.

We didn't execute governors when they were fighting for segregation

"We" (Kennedy) Federalized the Alabama national guard and sent in the 101st Airborne, and George Wallace backed down. If he hadn't, he might well have been executed.

Democratic federal authority hangs by a thread atm and they don't currently have anywhere near the mandate Kennedy did when putting down segregationists. If Biden arrests Abbot, my current read of the situation is he would basically be certain to lose the presidency as a result. You might disagree on how the votes shake out, but it's pretty clear Abbot thinks the same. It's precisely because Biden is extremely unpopular and this is an election year that he's being so bold.

Which is a lot LESS than ordering troops to defy Federal authority, which is just about where we are.

Abbot is very carefully not doing that. The recent court ruling does not forbid Abbot from continuing to place razor wire blockades.

Personally, I think that the way this ends is with Biden doing nothing substantial until he gets an actual court victory or wins the election, and Abbot then backing down.

If border patrol and the national guard are already siding with Texas what makes you think the 101st would side with the globalists?

When push comes to shove, Red Tribe follows the chain of command.

That's definitionally not an offramp.

Sure it is. Abbott is arrested, Dan Patrick orders the Texas National Guard to stand down on threat of being arrested himself, Abbott is brought to DC for trial for insurrection, duly convicted, and sent to Federal prison. ADX Florence if the Democrats are feeling super-feisty and claim he presents an escape risk.

Most likely Abbott will back down, but Biden has carte blanche here.

Dan Patrick

And

more conciliatory than Abbott

Not descriptors that go together.

Yeah, kind of like how Omaha Beach was an offramp,I get it.

"Offramp covered by machine-gun enfilade" has a certain ring to it.

I don't see where the offramps are other than Abbot backing down.

I can think of a few more:

  • Biden backing down. Probably won't happen in a public way, but still possible.

  • Federal agents refusing to follow orders that would result in conflict with Texas. Not necessarily publicly, but a form of quiet disobedience.

  • A really silly game of the feds cutting the wire, leaving, and the Texas putting up more wire immediately.

A really silly game of the feds cutting the wire, leaving, and the Texas putting up more wire immediately.

The wire under consideration is in a park that Texas is refusing to allow federal agents into.

Federal agents refusing to follow orders that would result in conflict with Texas. Not necessarily publicly, but a form of quiet disobedience.

With the border patrol union statements in support of Greg Abbot, this will probably happen.

This is confusing to me: all the media reports say that the wire is "in the river." Pictures appear to show an orange floating structure.

CBP has boats. So why do they need access to the park?

The orange floating structure is a separate barrier involved in one of the multiple other ongoing legal battles.

The reason this particular park is a strategic location is because it's the only boat launch usable by the border patrol for miles around, apparently. I don't know why they can't use a different boat launch and I suspect they're probably not looking very hard.

With the border patrol union statements in support of Greg Abbot, this will probably happen.

"Sorry boss we ran out of gas on the way"

How long could that really go on before we are in a similar sortof mass insubordination crisis?

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