Texas's Slow- Motion Secession

January 26, 2024

In January, Texas Governor Greg Abbott ordered his law enforcement agencies to put up barbed wire as a way to further militarize the U.S.-Mexico border and block federal agencies from assisting people who might be crossing. Texas also concocted legal theories that essentially criminalize border crossings (mostly by calling it “trespassing”), so Texas authorities have been trying to arrest, detain, and (at some presumably very far-off point) bring to trial migrants crossing the border. Border Patrol and federal agencies, who must follow asylum law, generally refrain from trying to put everyone in detention because it’s against the law (although it would be wrong to call their efforts humanitarian because federal agencies certainly arrest, detain, and deport people).

This is part of an ongoing feud Abbott invented. He ordered the installation of various barriers and barbed wire intended to block (or maim) people crossing the Rio Grande. The federal government asks courts to stop him.  The courts by and large do.  And Abbott tries again.

On January 15, Texas legislator Henry Cuellar posted a notification that “three migrants – a female adult and two children – drowned in the Rio Grande River near Shelby Park in Eagle Pass.” They died because Abbott’s troops wouldn’t give federal agents access to render aid.  This was confirmed by later reporting.

The Biden administration brought a lawsuit seeking an order that Texas remove the barbed wire and allow federal Border Patrol access to this section of the U.S.-Mexico border. In a 5-4 decision, SCOTUS ordered Abbott to allow federal agencies access to the Rio Grande areas. (Note: The law is quite clear that immigration policy is a federal responsibility, so the split court here is…notable. The four dissenters did not bother to explain their reasoning)

On January 24, Texas Governor Greg Abbot’s office released an unhinged letter to explain why he was justified in excluding Border Patrol agents from this particular park, calling it Texas’s “constitutional right to self-defense.”

I have described this as a “slow-motion secession.”

Beginning in 2021, far-right factions of the Texas GOP have threatened to withdraw their support from Abbott, arguing that he was too business-oriented and not sufficiently anti-woke. (Excuse me as I stifle a laugh, given Abbott’s extremely conservative positions as Texas AG.) At most of the CSPOA events I attended in 2021 and 2022, every speaker and audience member was disparaging of Abbott. Paxton spoke at a 2021 event in Mesquite, Texas, and he made the case that defying the federal government was his full-time job. (His other job was representing Donald Trump in federal court.)

This far-right influence couldn’t change the legislature, at least not all at once, but they did persuade Abbott that, to stay in power, he needed to see things their way. I’m not saying that he does or doesn’t agree with these policies – who knows and who cares – but his words and actions suggest that he is happy to implement a transphobic, cruel, business-oriented, corruption-filled agenda. In fact, to date, many politicians and ranchers (who exercise inordinate influence on border policy – I cannot say enough about ranchers) are unhappy with the state government and are pushing for even more special-interest policies, like compensation for damage allegedly caused by migrants on their property.

The issue of immigration presented the governor an opportunity to gather not just state support, but multi-state support. To date 24 GOP governors have expressed support for the Texas Cause, providing fodder for the nativist meme factory.

There have been, from what I see, two reactions on the right. Some argue that the media is making too much of this, there is no way that militias – excuse me “Conservative activists” – will grab their guns and swarm the border. From one such writer:

But, let’s not make too much out of current events. They are notable, they are ‘extreme,’ certainly historic by most measures, but the way a few folks out there on X/twitter and Facebook and elsewhere are acting, you’d think it was time to pack up the rifles and tents and run for the border.

This is not that time.

The other reaction is like cheering the guy who agreed to take the first punch to the chin. Abbott actions are justified, more than justified. The migrants deserve it, and, even better, all Democrats, all progressives, all the libs deserve it. They cheer what they see as an impending civil war, one that will pit the Noble State of Texas against the hated Feds. Most of the comments are people offering to stand guard at the border. (Border militias are already there.)

Abbott is using an old legalistic trick that dates to John Calhoun, a slavery enthusiast who argued to white slavers in South Carolina that nullification was “a form of ‘concurrent government’” to protect the “different interests, orders, classes, or portions, into which the community may be divided.” It was the root of anti-democratic thinking.

“Nullification” and its relative legalistic theory “interposition” (the act of stopping federal or state enforcement of laws) reappeared when, in the 1950s, the Supreme Court held that schools must desegregate. Ex-Confederate states resisted. In 1956, the Virginia legislature passed, by a near-unanimous margin, a Resolution “interposing the sovereignty of Virginia against encroachment upon the reserved powers of this State” in order to protect segregated schools.

One of the primary peddlers of nullification is KrisAnne Hall, an ex-Florida prosecutor and Christian nationalist (her husband J.C. Hall is an evangelist). Her message, like many of the “constitutional sheriff” regulars lacks the overt racism of prior Patriot movement incarnations, so it is more palatable for many to swallow. More people are certainly able to justify some amount of violence in their minds than they are willing to pick up guns and commit violence. That’s her audience.

Hall frames the immigration issue as one of the “rule of law.” Migrants are violating the law by crossing the border. She describes her shows as instruction for the public – the right relies a lot on “educate yourself,” “You won’t learn this in school,” “look it up,”—the right knowledge is accessible and clear if only you read the text upside down and sideways.

“The truth is that the states are the higher power,” she claimed, asserting Abbott was allowed to put up barbed wire.

Hall is a popular speaker on the “constitutional sheriff” circuit. She was also in Texas relatively recently, performing her snake oil show for Tea-Party-style groups.

A lot of what Hall says is rather similar to the Doctrine of Lesser Magistrates, explained eloquently here. The summary is that it’s a Biblical-based version of interposition and nullification. The prime hawker of the “lesser magistrates” doctrine, an anti-abortion pastor named Matt Trewhalla, gave an Opening Prayer at the 2023 National Sheriffs Association conference. And he had a booth in the exhibition hall.

Trewhalla has also claimed credit for Greg Abbott’s succession-ish defiance, arguing that his self-published book on lesser magistrates was being distributed amongst Texas military and law enforcement.

To be fair to those who are worried about civil war, Abbott’s letter speaks directly to the people most likely to carry it out. He justifies “stand your ground” for state-sanctioned violence. (Also Abbott: “The only thing that we’re not doing is we’re not shooting people who come across the border, because of course the Biden administration would charge us with murder.”) So, we can hardly be blamed for feeling concerned. (Can’t a man be angry? his supporters say.)

Abbott’s dabbling with secession seems designed to drag people into a world where nullification and violence are part of the natural order of things. (I think of how the buses sent by Texas and Florida to New York just, well, faded into background noise.)

As I write this, the United States Supreme Court has just cleared Alabama to conduct the first execution in this country using nitrogen gas. (Always remember that Trump did kill people while he was in office.) Is this what it looks like while slow-motion succession is happening?