We hear tremendous puffery, on both sides, when it comes to discussing the illegality of state and federal actions at the Southern Border. It makes sense—the stakes are high, in both the court of law and the court of public opinion. But the hyperbole obscures a crucial point: it’s time for the Biden Administration to take Texas’s self-help as a big wake-up call that it’s time to act. 

Governor Abbott and President Biden are currently tangling over whether Texas may install deterrents (concertina wire) along the southern border unilaterally. Texas says yes, but political actors and the media are screaming that Texas is disregarding the Supreme Court. 

Texas is right.

Here’s why. In October 2023, Texas sued the federal government for destruction of its property after federal border patrol agents tore down its wire. In December, the Fifth Circuit Court of Appeals sided with Texas, and enjoined the federal government from destroying any more wire during the course of litigation, unless there was a medical emergency and the wire prevented border patrol agents from getting to the victims. (Which Texas and the federal government had long agreed was proper.)

The federal government challenged this pause—called an injunction—and the Supreme Court decided to lift the pause. In other words, the only question the Court answered was whether the federal government could continue to tear down Texas’s wire while a real hearing on the case’s merits was pending: and they said it could.

The Court said nothing about the legality of Texas putting up the wire in the first place and whether it could continue to do so. The Court gave no reason for its decision. So while commentators on the Right have bemoaned that the Court blessed an open border, it may be that the Court simply acknowledged that the federal government is generally immune from these types of trespassory lawsuits. And commentators on the Left wail that Texas has defied the Supreme Court, this is not only false but harmful in turning up the temperature on an already divisive issue. 

Wading through this misleading legal commentary, one finally arrives at Texas and 25 states’ announcement that Texas may invoke certain powers to repel an “invasion.” The Constitution indeed reserves War Powers for the federal government, unless a state is being invaded. But most Americans believe that the Southern Border is being invaded—it’s just not the sort of invasion that would empower states to take additional action. While it might be true that the Southern Border is overwhelmed, it is not an invasion in the legal sense because it is not sufficiently adversarial. A group cannot invade a country whose Executive has its arms wide open. 

Do drug cartels take advantage of Biden’s negligence at the Southern Border to harm migrants and smuggle drugs into the U.S.? Undoubtedly. That is well documented. But Drafters of the Invasion Clause, such as James Madison, made clear that the clause refers to states exposed to armed political entities—to foreign militaries, not an organized crime group. States’ effort to force-fit this situation onto a provision of the Constitution illustrates the desperation for a solution that doesn’t rely on executive action. 

And Americans agree our border needs solutions. I remain hopeful. But we will not get there if our first reaction is to bring misleading and hot-headed analysis where facts will do just fine.