Neoconfederate Dual Power
Joe Biden dedicated his presidency to bipartisan cooperation and a return to normalcy after the COVID-19 pandemic, working with Republicans to develop policy and re-open America after public health lockdowns. In spite of this he faced increasing hostility from his Republican partners, especially in Texas where the state began to usurp federal authority in respect to the border with Mexico.
Contra Biden
The dispute began immediately after President Biden’s inauguration on January 20, 2021. Biden signed Executive Orders putting a 100-day moratorium on migrant detentions until his new immigration policies could be implemented.
Biden also terminated the National Emergency concerning the southern border under which President Trump had directed the Department of Defense to build the border wall. This emergency proclamation had been controversial in Congress and the Republican Party because it bypassed the Senate to reappropriate the defense budget.
Biden’s immigration policy aimed to channel undocumented immigrants into well-supervised regular ports of entry, undercutting human traffickers. Homeland Security accelerated the asylum process to filter in more “good” migrants and remove “bad” migrants. More severe penalties were introduced for violating the rules. Foreign aid was used to discourage migration from Central America and new rules barred asylum seekers who had not first sought asylum in Mexico.
Where the Biden Administration tried to stem the flow of migration and speed up removal of migrants, the Texas Republicans wanted to prevent entry altogether. Republicans constantly accused Biden of wanting “open borders,” obscuring the fact that their demand was to close the border completely.
Texas Governor Greg Abbott claimed that if Biden paused deportations and changed Trump’s immigration policy then he was failing his responsibility to protect the States. Rejecting the shift in federal policy, Governor Abbott launched Operation Lone Star on March 8, 2021.
Operation Lone Star
Operation Lone Star (OLS) directed the Texas Department of Public Safety and Texas Military Department to remove undocumented immigrants from Texas. The DPS includes the Texas Rangers and state police, while TMD includes the National Guard and State Guard.
Immigration enforcement is a federal jurisdiction, as the Supreme Court ruled in Arizona v United States (2012). Instead of directly enforcing federal law, DPS was directed to detain migrants on misdemeanor trespassing charges. Local jails swelled with migrants waiting to be handed over to immigration officers.
The Texas Army National Guard could not be deployed for law enforcement and was instead tasked with securing and surveilling the border. National Guard engineers set up fences, razor wire, and other barriers along the Rio Grande. Guards carried out observe and report missions along the border, calling border agents to apprehend any migrants caught crossing.
OLS was enhanced by Governor Abbott’s disaster declaration on June 1, 2021. In this declaration Abbott claimed that drug smugglers and human trafficking had created an emergency in communities along the border, requiring new powers and enforcement.
Abbott held a “Border Security Summit” on June 10, establishing a Border and Homeland Security Task Force to coordinate efforts between multiple government departments, including TMD, DPS, the Parks department, and the Division of Emergency Management. On the same day, the Governors of Texas and Arizona issued a joint letter to their fellow governors requesting aid through the Emergency Management Assistance Compact (EMAC).
EMAC is an interstate compact, an agreement between States which is not created by Congress. EMAC is an agreement between all 50 states to share emergency and disaster relief resources and has been used in response to hurricanes, industrial disasters, and other crises.
This request was followed by the June 16 announcement of Texas’ border wall strategy, allocating millions of dollars to continue construction of the “Trump wall.”
Seizing Legal Authority
After unilaterally resuming Trump-era border policies Texas joined a lawsuit to force the President to comply. On April 4, 2022 a suit was filed by 19 states to keep the border closed under Title 42 orders.
Title 42 enabled the CDC to close the borders during the COVID emergency, slowing transmission of the virus internationally. The order was enabled by the national state of emergency which had been declared during the pandemic.
While the case worked through the courts Governor Abbott met with governors of the Mexican states bordering Texas and signed Memoranda of Understanding with them. These MOUs provided for joint policies to reduce the number of migrants approaching the US border as the President prepared to end Title 42. MOUs were signed with Nuevo Leon on April 13, with Chihuahua and Coahuila on April 14, and with Tamaulipas on April 15.
Abbott then activated the Joint Border Security Operations Center (JBSOC) on May 20, 2022; a command center for Operation Lone Star and the 15 state agencies tasked with enforcing the border.
That summer Abbott granted new authority to OLS. Executive Order GA-41, signed July 7 2022, stated that the President had broken the “covenant” with the states by failing to protect the border, and cited Arizona v United States to say that Texas had the right to defend itself. This order enabled officers under OLS to transport captured migrants to the border. Abbott further signed Executive Order GA-42 on September 21 2022, declaring the Sinaloa and Jalisco New Generation cartels as terrorist organizations; with this classification they could be treated as national security threats and enemy combatants.
By December the courts had agreed with those 19 states and extended the Title 42 order. This extension was soon moot, as the White House planned to end the COVID state of emergency in May and the order would have no legal basis.
Interstate Military Action
Texas’s militarization of the border accelerated as the May 13 expiration of the COVID emergency approached. On May 8 2023 Abbott deployed the Texas Tactical Border Force, a rapid response group of several hundred National Guard soldiers.
On May 16 Abbott issued a call for National Guard support through EMAC to secure the border. 24 Republican governors immediately stated their support for Texas in the face of the President’s “abdication” of duties. On the same day, Senate Bill 1403 of the 88th Legislature of Texas was passed, granting the Governor the power to “develop and execute an interstate compact for border security among interested states.”
Allied states responded immediately to Abbott’s request: Idaho and Florida committed personnel on May 17, South Carolina committed 150 National Guard troops on June 29, and Virginia sent 110 Guards on July 8. This was the first time EMAC had been used solely to deploy military force, not emergency aid.
On December 18 2023 the Texas Senate passed Senate Bill 4 making illegal immigration a state-level crime, prompting a response from the Department of Justice: Arizona’s attempt to do the same had resulted in SCOTUS ruling for the federal government in Arizona v United States.
These challenges to federal authority finally culminated in the dramatic Standoff at Eagle Pass on January 23, 2024. US Customs and Border Protection agents had been tasked with clearing razor wire laid by OLS and declared illegal by the courts. Their efforts were thwarted by National Guard troops deployed to block them in the city of Eagle Pass. Shelby Park, where CBP had been processing detained migrants, was cordoned off with coils of razor wire and seized by the state of Texas.
On January 24 Governor Abbott issued a statement, saying that “the federal government has broken the compact” with the States by failing to protect them from an “invasion.” Abbott declared that Texas was being invaded by migrants, coordinated by terrorist organizations, and that Article I of the Constitution guaranteed Texas’ “sovereign interest” in defending it’s own border.
Republican governors immediately responded with material support for Texas against the federal government. Oklahoma deployed its National Guard on January 26 ahead of a January 29 letter of support signed by the legislature of Arizona and the Attorneys General of 26 other states.
By far the largest commitment was made by Florida on February 1, when Governor DeSantis pledged 1000 National and State Guard personnel to the border.
14 governors gathered in Eagle Pass on February 4th to confer with Abbott. Subsequently the governors of Indiana, Georgia, Missouri, and Arkansas deployed their National Guards to join the other interstate forces under JBSOC command.
As support came pouring in Gov. Abbott announced that Shelby Park would be turned into a forward operating base for Texas’ border mission. When he welcomed troops to the new base on May 31 Abbott said that it would “allow Texas to have a permanent presence on the southern border. Texas will not stop until we gain full operational control of the border”
Independent State Militias
Most of the interstate deployments involve the National Guard, not state police forces. National Guard units are organized and funded by each state. They can be called into federal service as a reserve force for the US Army and Air Force, or into state service in response to emergencies.
Because the Commander-in-Chief outranks the Governors of the states, President Biden could have ended the standoff with Texas by federalizing the Guard. Instead the President limited his response to the courts, possibly to avoid outraging his Republican partners.
A future President in a future standoff may not even have that option. Republican-governed states have been authorizing, professionalizing, and expanding their own state defense forces.
A 1955 Act of Congress authorizes each state to organize its own militia under its own command. This was intended as an auxiliary for the National Guard when it is deployed overseas. The state guards usually function as an officer cadre with a small number of full-time staff, able to recruit and train new personnel as needed.
The largest of these state defense forces in the Texas State Guard, but the most relevant to this crisis is in Florida. Ten months after Biden’s inauguration Governor DeSantis announced the reactivation of the Florida State Guard, which had been dormant since World War II.
Florida’s 2022 budget appropriated $10m to recruit 400 personnel for the Florida State Guard. The next year their budget grew to $104m and the FSG was authorized to recruit up to 1500 personnel.
The forces under Governor Abbott’s command represent a “coalition of the willing” among Republican states, an interstate military force which acts without federal oversight or control. As State Guards professionalize and grow they become more capable of replacing National Guard troops under OLS, troops which may be called into federal service by a willing President.
New Confederalism
The goal of Texas’ border coalition isn’t to rebel against the federal government and defeat it militarily. The goal is to operate independently and in contradiction to Washington, targeting unarmed civilians and armed gangsters. National Guard and State Guard forces are sufficient for this conflict, but it still serves to weaken and harm the federal government’s authority.
Through public statements and court submissions Texas has advanced the Compact Theory of government. This theory was definitively articulated by Jefferson Davis, President of the Confederate States of America, in his 1890 memoir. Davis provided Compact Theory as the legal justification for the secession of the Confederacy.
South Carolina’s 1861 Declaration of Secession had argued that the Constitution was an interstate agreement which the States had entered and could exit voluntarily. In contrast to the view of the Union as a national government which represented all people of all states, Davis presented the US government as a creature of the States which could not overrule their laws. The old Confederates believed that interstate compacts create consensual, mutual obligations between the signatory States, which retained their own sovereignty.
It should be remembered that the Texas Republican Party, in the aftermath of the 2020 election, had proposed a “Union of states that will abide by the constitution.” Chairman Allen West was referring to the Supreme Court’s rejection of a lawsuit brought by 18 states to challenge the validity of election results in Democrat-controlled states.
While liberal commentators warned that this was a prelude to secession the truth is much different: the Republicans were preparing to form an interstate compact which could overturn presidential election results and impose their own vision of the Constitution on the rest of the country.
In contrast to the old Confederacy, which seceded from the Union when Lincoln was elected, these new Confederates pledged to stay in the Union when Biden was elected — and aimed to break down Federalism from within.
Trump II
Shortly after Trump’s victory in the 2024 election he confirmed that he would resume the national emergency and use military force to expel the “invasion” of migrants. This includes an estimated 11 million undocumented immigrants.
Texas has an outsized influence on Trump’s border policy. On November 26 2024 Texas offered 1400 acres of state lands for Trump to construct migrant detention camps. The same day, CNN reported that the President-elect was considering Mike Banks, the Special Advisor to the Governor on Border Matters (“border czar”) as head of Customs and Border Protection. More importantly, CNN learned that the new administration will further decentralize immigration power:
Trump’s team is, in part, banking on state cooperation to fulfill the president-elect’s campaign promise of mass deportation by shifting state resources to help agents along the US southern border and free up federal personnel to detain undocumented immigrants in the US.
Given that Trump plans to reproduce OLS in multiple states, the devolution of immigration enforcement is likely to accelerate.
Trump’s nascent border policy requires the states to have the power to enforce immigration, and he can instruct the Department of Justice to drop its case against Texas’ SB 4. The Supreme Court is much more conservative than it was when it heard Arizona v United States and may reverse the decision made in 2012.
These policies are not limited to domestic action. In 2023 Republican Representatives were already pushing for Congress to label Mexican cartels as terrorist organizations. Now Trump’s transition team is debating to what extent the US should invade Mexico to wage war against the cartels.
Though he will be President for the next four years Trump cannot lead forever. Eventually another Democrat may take the White House, but when they do it will be a President who has far less power over far more autonomous states. In the view of the Neoconfederates power is delegated to the President by the states, which are sovereign and can exercise that power themselves: soon that may be the opinion of the Supreme Court as well, and any President who opposes it could be challenged by interstate military force.
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