Over the past few weeks, a quiet legal crisis has been unfolding on the US-Mexico border. Texas has seized control of part of the border and claimed the right to prevent federal authorities from exercising jurisdiction there. After the US supreme court ruled that the federal government could tear down razor wire erected by Texas authorities, the state vowed to erect more – and Governor Greg Abbott claimed that because the federal government had failed to protect his state from an “invasion” of refugees, it has “broken the compact between the United States and the States” and lost the right to exercise authority over the border altogether.
To understand why this is so alarming, you need to see it in two historical contexts. The first is the notion of a “compact” between the states. This idea holds that the constitution is not the supreme law of the land but rather a mere agreement between independently sovereign states. Those states hence retain the right to decide when certain actions by the federal government break the compact – and to reclaim their independence accordingly.
This idea – sometimes known as “compact theory” – was key to the quasi-legal arguments deployed by the Confederate states in the 19th century to justify first secession, and then civil war. As well as being rejected by the framers of the constitution, it was also explicitly ruled incorrect by the supreme court once the civil war was over. Nowadays, there is really no such thing as “compact theory” outside of the imagination of neo-Confederates and other far-right groups – there’s just federal law, and actions that break that law.
Secondly, the erroneous idea of the compact and the broader agenda of “states’ rights” of which it is a part have often been deployed in order to advance a white supremacist agenda. Slavery is the most notable example. But the southern states – including Texas – also invoked these ideas to defend the system of Jim Crow, which within living memory denied full rights to generations of African Americans. Only the civil rights movement forced a change.
Another part of this tradition is the inversion of the realities of power and violence which lie at its heart. Slavery was justified in part by arguments that the slaves, if freed, would threaten and even exterminate the white race. Jim Crow was reinforced by the related idea that free Black people would, if not physically eradicate white people, destroy the white body politic by contaminating it with unfit citizens. In each case the reality of who was really a threat to whom – the slavedriver to the slave, the Klansman to the free Black citizen – was hidden by an elaborate ideology of fear which in reality was used to justify the continuation of white supremacy.
By claiming the right to nullify federal authority in order to wield lethal force against non-white migrants, Abbott is placing himself squarely in the center of these two traditions. His actions have already contributed to the death of two children and a mother who drowned in the Rio Grande as Texas authorities prevented federal agents from coming to their aid. Refugees are among the most powerless people in the world, but to Abbott they are elements of an “invading” force which threatens the security of Texas and the United States. Like his predecessors, he believes that even the constitution shouldn’t stand in the way of his ability to harm them.
But just because Abbott is invoking some of the most sordid chapters in American history to justify his actions doesn’t mean we should have confidence that he will fail.
One of the most disturbing aspects of this whole affair is that despite Abbott’s arguments having no legal merit, four supreme court justices were willing to endorse Texas blocking federal authorities from removing the razor wire at the border. The fact that this case was so narrowly decided is a five-alarm fire that suggests we are only one new court decision or one new Republican supreme court appointment away from a radical restructuring of America’s constitutional order. Future historians may look back on the 2020s as a turning point as profound as the civil rights movement of the 1960s – and one in which the pendulum swung back the other way.
What Texas is doing also dramatically raises the stakes of this year’s presidential election – and not just because the next president may be able to pick another supreme court justice. With so many Republicans endorsing the idea that the situation at the border can be characterized as an invasion, the road seems to be open for a Republican president to make a federal invasion declaration.
This would not only pave the way for an even more militarized treatment of refugees, but also allow the federal government to suspend the rights of millions of Americans living in border areas if it deems such a step necessary to repel the supposed attack.
Luckily, there are legal and institutional barriers to such a step – many constitutional scholars believe that a federal invasion declaration requires an act of Congress. But in this case as in others, all roads lead to the supreme court, and it has already signaled its openness to many extreme ideas. America is in a time of great constitutional danger, and the border may be both an early warning sign – and the place where the country ultimately comes unstuck.
Andrew Gawthorpe is a historian of the United States at Leiden University. He writes a newsletter called America Explained
