Texas' Border Defiance Might Be the First Volley in a New Civil War

Gov. Abbott's actions rely on neo-Confederate theories and are calculated to generate a constitutional crisis

Texas National Guard and Texas State Troopers deployed to the border in El Paso, TX, to deter migrants from crossing. Shutterstock. Ruben2533.

On Jan. 24, Texas Gov. Greg Abbott released a remarkable statement with an even more astonishing opening line: “The federal government has broken the compact between the United States and the States.” Abbott declared that the “lawless border policies” by the “lawless president” Joe Biden had failed to protect the state of Texas from the “invasion” of migrants. As a result, the governor invoked the “State right of self-defense.”

Abbott’s statement came in reaction to a Supreme Court ruling declaring that federal agents have the right to remove razor wire Texas had installed without federal authorization on the U.S. border with Mexico along the Rio Grande. By “right of self-defense,” Abbott is saying Texas has the right to ignore the decision of a federal appeals court and the Supreme Court to continue to militarize the border without permission from the federal government, under whose purview immigration and border protection clearly fall. To Abbott, “self-defense” requires open defiance of presidential prerogative and nullification of federal law.

The result is a political standoff between Texas, which counts on the explicit support of 25 Republican-led states, and the federal government—and, on the ground, between federal border patrol agents on one side, and the Texas National Guard, state troopers, and Texas Department of Public Safety officials on the other.

Whatever happens from here, this is already a hugely significant crisis because it captures so much of the conflict that shapes our present. And if it is indicative of what is to come in 2024 and beyond—and I see no reason why it wouldn’t be—then that makes it all the more concerning.

How We Got Here

This border standoff—which either already is a full-blown constitutional crisis or is rapidly getting there, depending on where exactly one wants to draw the line—has been brewing for almost three years. The story goes something like this.

In March 2021, Abbott announced Operation Lone Star, a broad-scale offensive against “the smuggling of people and drugs” into Texas run by the Texas Department of Public Safety (DPS). By the summer of 2022, the Department of Justice was investigating this operation for alleged civil rights violations. But Abbott remained undeterred: He declared a state emergency and had razor wire installed along 60 miles of the border without prior federal authorization.

In July 2023, Texas began deploying a floating barrier of buoys designed to maim or kill whoever tried to get through the Rio Grande river along a thousand-foot stretch of the border in Eagle Pass, Texas—an area that had seen a particularly high number of border crossings. Within weeks, the Justice Department sued Texas over this—both on humanitarian grounds and because Texas lacked authority for such actions. Shortly after, the first cases of migrants, including children, hurt by the razor wire Texas had installed were documented. In August, bodies of migrants were found near Eagle Pass. They had drowned. One of the bodies had actually stuck onto the floating barrier.

This case made its way through the courts until finally, in December, a federal appeals court ordered Texas to remove the floating barrier. Instead of complying, Abbott announced massive new funds for more border barriers shortly before Christmas and signed a law making it a state crime to illegally cross into Texas, declaring that Texas had a right, all on its own, to apprehend people, put them in jail, and even deport them. I can’t overstate how radical this step is: Abbott’s law upends the entire system of how immigration is supposed to work in America, and Texas has announced that the government of the United States no longer has authority over part of an international border—a border with another country.

The next level of escalation was reached on Jan. 11, when Texas state troopers and DPS officials closed down and took control of Shelby Park, a 50-acre public park in Eagle Pass along the Rio Grande, under the umbrella of a disaster declaration. They have been denying federal agents access to this part of the border ever since.

On Jan. 22, in a 5-4 vote, the Supreme Court sided with the Biden administration and declared that federal agents were allowed to remove the razor wire at the border that had been deployed without federal authorization. Even though the legal and constitutional arguments advanced by Texas are complete bunk (more on that in a minute), Justices Alito, Thomas, Gorsuch, and Kavanaugh dissented.

Neo-Confederate Legal Theories

The legal and constitutional case Texas is advancing does not hold up to scrutiny, argues Slate’s Mark Joseph Stern, because it rests on two dubious pillars. The first is the notion that Texas is being invaded. Abbott’s characterization of what’s happening at the border as an “invasion” grants him the grounds “to invoke Texas’s constitutional authority to defend and protect itself.” One glaringly obvious problem is that there simply is no invasion. Human beings seeking asylum very clearly is not what the Founders had in mind when they used the term “invasion.” The Constitution envisions a state under attack from an enemy force, needing to defend itself until the federal government—far away in Washington D.C., with no standing army at its disposal, at that time—was ready to act. That is obviously not the situation today. The idea that states can just unilaterally designate whatever they want an “invasion” if it suits their interests and thereby circumvent federal authority is preposterous.

The second pillar of the argument Texas is making is the so-called “compact theory,” according to which, the Constitution is just a contract that entails certain duties the federal government, and especially the president, has to fulfill. If those duties are neglected, the states, understood as sovereign entities, are free to disregard federal authority, ignore federal law, and, ultimately, leave the Union. This is precisely the argument slave states used to justify secession. As Stern put it: “This language embraces the Confederacy’s conception of the Constitution as a mere compact that states may exit when they feel it has been broken.”

It actually makes a certain amount of sense for Abbott and today’s reactionary right to adopt these neo-Confederate arguments. In a way, they are just explicitly emphasizing the tradition in which their political project stands, as they are once again defying the federal government and deploying “states’ rights” in order to justify inhumane brutality in service of upholding white nationalist domination. The fact that this argument was resoundingly defeated—politically and on the battlefield—does not matter to them: The Republican Party and the extremist right are all in.

Among the first to announce support for Abbott’s gambit was Speaker of the House Mike Johnson. Twenty-five Republican governors have endorsed Texas’s position, pledging their support for Abbott’s fight against the federal government and for the legal theories justifying it. Some are even vowing to send their national guards, itching to escalate the situation further. That is something Donald Trump would very much like. He has already called on Republican states to “deploy their guards to Texas to prevent the entry of Illegals, and to remove them back across the border.” And nothing mobilizes right-wing extremists like a standoff against forces they perceive to be hospitable to non-white foreigners. Elon Musk is on Abbott’s side, propagating Great Replacement conspiracies, the barely concealed subtext of this whole conflict, by accusing Biden of wanting to bring in immigrants as illegal voters (“they are importing voters”). And far-right activists have called for a “Take Back Our Border” rally. What could possibly go wrong?

This Isn’t Just Noise—It’s a Real Crisis

There are at least three major reasons why this border conflict matters greatly. First, real human lives are at stake; real people are getting hurt at the Texas border. On Jan. 13, three migrants drowned near Shelby Park, the contested area in Eagle Pass that Texas authorities have seized. Two of them were children, eight and 10 years old. It's unclear whether Border Patrol could have prevented their deaths had Texas not seized the area, but since federal agents no longer have access to that part of the river, they definitely were not in a position to help. It is morally perverse that the very people, children included, seeking asylum from terrible conditions are drowning, getting hurt trying to get through razor wire, and that, somehow, the border conditions Texas has implemented end up being a worse fate for them than what they left behind to come here. Obviously, Texas alone isn’t to blame for the mess that is U.S. immigration along the southern border, but its contribution to the militarization and brutalization has resulted in a level of cruelty and disregard for the lives of fellow human beings that is deeply disturbing. 

Second, “the border” plays an enormously important role in the collective right-wing imagination, and propagating the idea of a foreign “invasion” in the form of migrants crossing into our country is a central part of how the right mobilizes its supporters. Since this is an election year, we will continue to hear about the border being overrun. It’s a core Trumpian sentiment and a key driver of right-wing electoral energy.

In 2016, the pledge to “build the wall” was arguably Trump’s signature promise; it was the one issue Trump could count on to reliably and consistently animate his base. In 2018, in the run-up to the midterms, the right obsessed over the idea of a “caravan” of dangerous brown people—Central American migrants—approaching the southern border. Trump even deployed thousands of troops there shortly before the election.

Scaremongering about an “invasion” of dangerous non-white people at the border is not something Trump has introduced—it has been a fixture on the far right for decades. And every time some immigration deal to solve whatever problem there might be seems within reach, the radical right has sabotaged it. That was the case when the extremist wing of the Congressional GOP killed an immigration reform package that had bipartisan support in 2013, and it is the case now, as Trump and his allies are doing everything they can to sink whatever compromise measure might be available. The right is not interested in a public policy solution. It is interested in whipping up fear and anger. Right-wing warriors don’t want a functioning immigration system. They want to use immigration as a renewable source of reactionary hysteria—the kind that reliably animates voters to go to the polls.

But behind this political goal is a social vision: They want to halt all immigration of people who are not white, and they want to get rid of the non-white migrants who are already here. Underneath the cynicism and opportunism is an ideological conviction, a sincerely held worldview in which migrants could never form a part of “real” America—and, in fact, they would be its undoing. This is how many of today’s Trump voters assess the threats to America: those from without (”invasion,” “illegals,” “the caravan”) and those from within (“the left,” “cultural Marxists,” “the woke”). To make room for any of these people is to allow America to become something it must never become: a godforsaken place of multiracial pluralism.

A Nation Divided

The third reason we should see this border conflict as a major crisis is that this is not an isolated incident. This standoff is part of a much bigger story and has to be seen in the broader context of the country falling apart. I don’t tend to like the “new Civil War” terminology that suggests a simple repeat of the past. Of course that’s not how history works, ever. Such notions underestimate how specific the constellation of the mid-19th century was—the conflict over slavery defining the country’s institutions, economy, political economy, and culture—that led to deep division escalating to an attempted secession and Civil War. Today’s situation doesn’t easily lend itself to the formation of two contiguous power blocks. The country’s political geography, for instance, is defined much more by an urban-rural divide than a conflict between North and South.

But as much as I am professionally obligated to caution against facile historical analogies, Republican states are, right now, openly and aggressively endorsing the argument that led this country into a Civil War. There are, at the very least, some very concerning echoes; and more importantly, there are powerful traditions and continuities.

Republican governors are proudly taking up the “states’ rights” mantle to defy the federal government. On the level of the underlying political project and vision of what America should be, there is a fairly direct line from the secession of slave states to today’s neo-Confederate use of the “compact” theory as a way to justify the cruel crackdown on an “invasion” of people of color. And as much as the Civil War analogy may tend to invoke misleading associations, it can actually be helpful if it alerts people to the seriousness of the situation and to the prospect of violence. Because the fact that we will not get a rematch between vast armies dressed in blue and gray meeting on the battlefield does not mean the current situation isn’t extremely volatile and dangerous, or that there won’t be violence. There is likely going to be a lot more political violence.

The gap between Red America and Blue America is rapidly widening. The country has been breaking apart into a multiracial, pluralistic “blue” part that accepts the changing social, cultural, and demographic realities versus a “red” part entirely devoted to rolling back those changes.

In Texas, Greg Abbott is currently demonstrating how Republicans intend to proceed: by authoritarian rule, nullification of federal authority, and open rebellion against the government of the United States they perceive to be dominated by “un-American” forces and therefore fundamentally illegitimate. All of this leads to instability and dysfunction, constitutional crises, and, ultimately, violence.

Will this particular standoff at the Texas border escalate into the type of crisis that takes an already volatile political situation to a whole different level? Maybe not. But it’s frighteningly easy to see how it might be a milestone in a series of events that leads the country to one of its darkest chapters yet.

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A version of this essay first appeared on Thomas Zimmer’s Substack, Democracy Americana.

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