Rebel Yell

By Nick Catoggio

Friday, January 26, 2024

 

In modern politics, you’re forever one litmus test away from becoming a mortal enemy to your own side—or at least to the most drooling activist fringe of your own side.

 

John Fetterman discovered that recently when his heresies about Israel and border security led members of his progressive base, apparently, to wish another stroke upon him. Many Republicans have learned it the hard way, starting with the guy who served Donald Trump loyally as vice president for years and then nearly ended up lynched when he failed an especially big litmus test on January 6.

 

This week it was Amy Coney Barrett’s turn. Even helping overturn Roe v. Wade wasn’t enough to earn her a pass on the latest ideological litmus test, it appears.

 

On Monday, Barrett provided the deciding vote in a 5-4 Supreme Court ruling that lifted a lower court’s injunction. That court had temporarily barred federal Border Patrol agents from cutting through concertina wire that the state of Texas had erected along a particular stretch of land near the southern border. The wire is there to deter illegal immigration and fentanyl trafficking, the state argued; the wire is impeding agents from reaching migrants to process them and assist the injured, the feds replied.

 

SCOTUS didn’t explain its reasoning in lifting the injunction, probably because the effect of its order is so limited. It didn’t bar Texas from installing concertina wire or other physical obstacles along other parts of the border. In fact, it didn’t bar Texas from installing more wire on this part of the border. All it did was allow the Border Patrol to cut through the wire as necessary to carry out its duties while the underlying litigation on the merits plays out, knowing that an appellate court is set to hear arguments early next month. The Supreme Court might very well side with Texas in the end.

 

But in activist circles, where every setback is an unimaginable catastrophe, the ruling amounts to nothing less than Barrett rubber-stamping a Joe Biden-approved “invasion” of the United States.

 

The usual suspects online reacted by calling for secession and civil war, explicitly or otherwise. Ann Coulter crowed that she had warned conservatives about the treachery of the “uber-Papist” Barrett and wondered if the justice prefers open borders because she’s keen to adopt another child from the third world.

But the most noteworthy response came from Republican politicians, who scrambled en masse to show solidarity with Texas Gov. Greg Abbott against Biden and the court. And for good reason: The politics of this dispute favor the GOP so emphatically that the only way Republicans can blow it is by behaving as irresponsibly as the most demagogic members of their base have.

 

So, yeah. They’re probably going to blow it.

 

***

 

Underneath this political spectacle lies a headier legal debate over how much power Texas should enjoy to enforce its own borders.

 

The liberal position on that is straightforward. Immigration is a matter of national policy and national policy is the responsibility of the federal government. If the Constitution grants the federal government a particular power then the states must yield; they don’t get to nullify how the feds exercise that power by implementing their own countermeasures. If you dislike the current administration’s policy, you’re free to vote the bums out in November. But that’s your only remedy.

 

The conservative position counters that the Constitution does not, in fact, grant the feds exclusive power over immigration enforcement. The states are sovereign; the nation’s borders are, as in Texas’ case, also state borders. And while Texas may be guilty of obstructing Joe Biden’s approach to immigration enforcement, it is not guilty of violating federal law. Biden’s the one doing that by ignoring what the law plainly commands about detaining all migrants upon entry and paroling them into the United States only on a case-by-case basis.

 

What’s more, conservatives—including Greg Abbott—note that the Constitution has some very specific things to say about federal and state power when it comes to repelling foreign “invasions.”

 

“Invasion” is a fraught term politically yet has become commonplace in how Republicans talk about the border crisis. Some who are otherwise sympathetic to right-wing politics find themselves cringing at it in context:

To be sure, sounding like a kook is a big and familiar problem in a party led by Donald Trump. But in this case, I don’t think it’s kookery. It’s good politics and arguably good law.

 

Using the term “invasion” to describe what’s happening at the border sounds hysterical at first blush because most of us associate the term with hostile military action. Twenty years ago, the U.S. “invaded” Iraq; a migrant family looking for work isn’t “invading” anything.

 

But the number of migrants crossing each month lately is so staggering that “invasion” analogies feel more apt than they should. “You essentially have Pittsburgh showing up there at the border” every few weeks, John Fetterman told reporters last month. When a huge mass of foreigners enters a country against the wishes of its citizens, that … does seem pretty invasion-like.

 

And not just to me, but to a majority of Americans, if you believe the polls. It can’t be overstated how abysmal Biden’s numbers on handling immigration have become, even relative to political liabilities as enormous as inflation. This issue might cost him reelection this fall.

 

“Invasion” is effective shorthand for capturing, memorably and accurately, the scale of the crisis for voters. And it drives home the absurdity of Biden’s position: Not only is the White House failing to prevent an invasion from the south, it’s asserting the power to remove obstacles to said invasion erected by the state of Texas. To many, it’ll be seen as tantamount to a general ordering his troops to stand aside as an enemy force approaches.

 

It’s not just political rhetoric, though. There’s a legal angle to using the term. As Abbott notes, Article IV, Section 4 of the Constitution obliges the federal government to protect the states “against invasion.” Article I, Section 10 holds that “no state shall, without the consent of Congress … engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.”

 

To my mind, the references to “invasion” in those provisions clearly describe traditional military action. In colonial times, a state on the northern border might plausibly be attacked by an enemy power and have to defend itself for weeks or months before the far-flung federal government in Washington could muster reinforcements. Texas has no such problem right now. It isn’t engaged in “war” either, needless to say, and it certainly doesn’t have Congress’ consent to proceed that way.

 

But if most Americans view the border crisis as an “invasion,” highlighting the fact that the Constitution empowers states to defend themselves from such things when the federal government can’t (or won’t?) will strengthen Texas’ political case that it’s acting within the law. Sure, fine, liberals are right that the federal government has supreme power to set immigration policy—but if the president’s dereliction of duty in doing so becomes so comprehensive as to produce an “invasion” then the states, constitutionally, should be able to step in and do the job Joe Biden won’t, no?

 

There are good reasons to dislike that argument, such as how the precedent it would set might be abused to nullify federal policy various and sundry. But I think it’ll hit home with voters who desperately want the border crisis to end and find Biden’s yearslong lack of urgency about it exasperating and infuriating. “If the Constitution was originally understood to mean that a state could not protect itself against an invasion … the Constitution would have never been ratified in the first place,” Ron DeSantis said this week, echoing a point Antonin Scalia once made in a similar dispute. That’s more of a political argument than a legal one, but it’s effective.

 

And it’s why, I think, conservatives like Abbott are so keen to drill down on the “invasion” terminology. The more constitutional Texas’ attempt to secure the border seems to the public, the more outrageous the White House’s effort to thwart that attempt will become. What’s already perceived as a political travesty will be compounded by a legal travesty, perceived or otherwise.

 

It’s a slam dunk for the GOP. Unless they’re stupid enough to needlessly alienate swing voters with incendiary radicalism, I mean.

 

But what are the odds of that?

 

***

 

Many times in this newsletter we’ve pondered the evolution of Ted Cruz and Mike Lee, who began their stints in Congress as avowed “constitutional conservatives” and ended up two-bit henchmen in a coup plot masterminded by a dimwitted game-show host.

 

I wouldn’t go so far as to say that inside every self-described “constitutional conservative” of the Tea Party era there’s an authoritarian straining to get out, but … actually, I am kind of saying that. The moniker has become an all but foolproof indicator of one’s willingness to flout the rule of law for political gain.

 

Probably the best-known “constitutional conservative” in the House Republican conference is Chip Roy, who served as Cruz’s chief of staff before entering electoral politics himself. Roy has had strong feelings about the Supreme Court’s recent order. A little too strong:

As others have noted, it’s literally impossible for Texas to defy the court. The ruling neither ordered the state to do anything nor prohibited it from doing anything. All it said is that the Border Patrol is permitted, for now, to cut any concertina wire that Texas erects at a particular spot near the border. If Abbott wants to replace the cut wire with new wire, he’s free to do so—with the understanding that federal agents can cut that wire too.

 

But lay that aside. Can we agree that urging a state to ignore an adverse ruling from the highest court in the land does not, shall we say, sit comfortably with the idea of “constitutional conservatism”?

 

Can we agree that a governor probably shouldn’t be entertaining potential “force-on-force” scenarios, in the unlikely event that Biden federalizes the Texas National Guard and other southern states respond by sending their own National Guard units to Texas to enforce the border?

Can we agree that it’s unhelpful for America’s foremost nationalist demagogue to be pressing Abbott repeatedly on whether he’s prepared for “imminent conflict”?

Can we agree that the 25 governors who signed a statement of “solidarity” with Texas could have and should have been clearer about needing to comply with court orders and resolving this dispute through legal means?

 

This is Republican politics in the Trump era in a nutshell. Even when the right has a strong case on policy, their collective impulse toward insurrectionism and physical intimidation leaves any decent person grasping for excuses to take sides against them. The Texas standoff should be a story about Biden’s reckless approach to border enforcement. It risks becoming a story about the GOP once again deciding, a la 2020, that it’s not obliged to respect an unfavorable verdict from a civic institution if the stakes are big enough.

 

Needlessly so, too. It’s as likely as not that a Supreme Court with a 6-3 conservative majority will ultimately rule in Texas’ favor, citing the logic of the Scalia opinion I linked earlier. Amy Coney Barrett’s vote this week to lift the injunction on the Border Patrol can, and perhaps should, be understood as little more than reluctance to limit federal authority while the merits of the dispute are still being litigated. Every slackjawed populist troll on social media fantasizing about the “People’s Republic of Texas” like some half-drunk Putin toady will probably be celebrating a legal victory a few months from now.

 

Or am I missing the point of all this?

 

Insurrectionism among the Republican grassroots is sincere, no doubt, but one never knows whether insurrectionism among the populist Republican establishment is in earnest.

 

Is Chip Roy bellowing about defying court orders because he believes it or because he’s landed on Trump’s enemies list for endorsing Ron DeSantis in this year’s primary and needs a way back into MAGA’s good graces?

 

Is Oklahoma Gov. Kevin Stitt chattering about southern states uniting against the feds because he wants a civil war or because he’s not very popular, term-limited, and needs to seize every media opportunity available to goose populist Republicans if he wants to advance further in the party?

 

Is Tucker Carlson wheezing about “imminent conflict” because he wants it or because he’s trying to get a new media platform off the ground and is so thirsty for redpilled approval that he’s begun interviewing people like “Catturd”?

 

If you doubt that the GOP’s new Trumpist establishment is willing to do tremendous damage to the country for purely selfish gain, look no further than yesterday’s newsletter.

 

The darker the party gets under Trump, the harder it is to parse whether Republicans Who Should Know Better are egging on the worst impulses of their constituents for political advantage or because they’ve come to share them. Even as between Cruz and Lee, who are so similar in so many ways, I’d place them in different buckets.

 

But it doesn’t matter, does it? What matters is that they are egging it on and that there’s no reason to think they’ll stop.

 

After all, the influencers eager to light this fuse will be very far from the detonation when it happens, and they know it. People like Matt Walsh who are tweeting Fort Sumter memes won’t be striking out from their well-appointed homes to join the patriotic Texas resistance in the event of “force-on-force conflict.” Only their fans will, and their fate is of no concern. It’s in the nature of drug-dealing not to care who overdoses.