Statement from Law Professor and Author John Eidsmoe on the Constitution and the Texas Border Showdown

For my weekly column, I reached out to ask for a comment from law professor, author, and constitutional attorney John Eidsmoe on the Constitution and the Texas Border crisis. On 1/26/24, John Eidsmoe sent me an email with this statement:

“In Department of Homeland Security v. Texas, the 22 January Supreme Court order dissolving a 5th Circuit injunction is only a skirmish in a long court battle.  The one-paragraph order simply said federal authorities could continue to cut wires set in place by Texas officials to prevent illegal immigration, until the case is finally resolved on its merits in the appeal from the District Court to the 5th Circuit, and, ultimately to the Supreme Court.  This 5-4 order is far from the final word in the case.

“But the case itself is vitally important, because it raises fundamental issues of federal versus state power and of the duty of the state to defend itself and its people,  Texas is defending its authority to engage in war ‘when actually invaded, or in such imminent danger as will not admit of delay’ (Art. I, Sec. 10), especially when the federal government abdicates its duty to protect the state from invasion or insurrection (Art IV, Sec.4).

“Some will say defense is a concurrent power to be exercised by both the federal government and the states, with the federal interest being preeminent.  However, I argue that the God-ordained duty of a state to protect its people is so fundamental that it transcends even the Constitution and the courts, and the states cannot exclusively delegate that power to the federal government even if they want to, which they do not and which they did not in 1787.  If the Biden Administration refuses to protect the people of Texas, the State of Texas can and must do so, even if the courts say otherwise.

“Governor Abbott may call up the Texas National Guard to protect its borders, and other governors are considering sending their own guard units to assist him.  Democrats are urging President Biden to federalize the Texas National Guard.  But many states have state guards or state defense forces which are not subject to federalization (32 U.S.C. 109), and the Texas State Guard is probably the best in the nation.  State guards are usually called up to aid in natural disasters like hurricanes.  In recent memory they have not been used to oppose federal tyranny, but this may be the time.”

Editor’s note: John Eidsmoe is the author of Christianity and the Constitution, as well as the massive three-volume set of books, Historical and Theological Foundations of Law.