The Supreme Court is not a suicide pact

Now is the moment in history to apply Justice Robert Jackson’s famous adage, “The Constitution is not a suicide pact.” Except, in the context of the Supreme Court in effect declaring an open border invasion on Texas, the Constitution is on our side. The court and the Biden administration are abrogating the charter, which is why Texas must ignore both of them, protect its people, and follow the Constitution.

Texas is experiencing an invasion of several million people per year coming from 150 countries. The Compact Clause in Article I, section 10 states clearly, “No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace … or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

The Supreme Court’s ruling on the motion carries zero persuasiveness.

Given the cartels, drugs, violent criminals, and third world masses storming cities like Eagle Pass every day, the magnitude of today’s invasion is greater than any scenario our Founders could have envisioned when they implied that a state can downright employ ships and troops to conduct war.

Most certainly, under this scenario, Texas would be justified in taking purely defensive actions, such as building razor-wire barriers that the Border Patrol wants to dismantle at the behest of the cartels and smugglers.

We have a dispute between two independent units of government. The federal executive branch is flouting well-established laws to facilitate an invasion of Texas. The Texas executive branch (with support from its legislature) wants to repel that invasion with barriers. Under these circumstances, Texas has the right to defend its territory by force. As future Chief Justice John Marshall said during the debate on the Compact Clause on June 16, 1788, “This clearly proves that the states can use the militia when they find it necessary."

Remember, Governor Greg Abbott in 2020 set up checkpoints on the roads leading into Texas from Louisiana to screen people and enforce the mandatory quarantine, as if Louisiana were an international border. The federal government and the courts had no problem with it. Suddenly, when it comes to invaders, foreigners have more rights than Americans do.

In comes a federal district court and rules that Border Patrol has the right to remove Texas’ razor-wire fence on the banks of the Rio Grande River. The Fifth Circuit enjoined that ruling and said the feds could not interfere with Texas’ border barriers in Eagle Pass. But on Monday, Justice Amy Coney Barrett joined Chief Justice John Roberts and three other liberals in temporarily reinstating the circuit court ruling as the courts deliberate the merits of the case.

Texas is right on the merits and the morals. Abbott swore the same oath to the Constitution as Joe Biden and Supreme Court justices. The Supreme Court is not supreme over the other branches (only over the inferior courts). The Constitution is supreme. And when it’s clear that Texas is abiding by the proper reading of the Constitution, its leaders must block the feds from destroying the barrier.

The Founders did not give the Supreme Court a police force for a reason. The court issues opinions, which are supposed to persuade the other branches based on the quality of its facts and analysis. This is why Hamilton in Federalist 78 said that the judiciary is the “least dangerous” branch because it has “neither force nor will.”

As Eleventh Circuit Judge William Pryor (who would have made a better justice than Barrett) once explained, respect toward the Supreme Court must be earned. “Hamilton’s point was that we must depend upon the persuasiveness of our written opinions to command the respect of our fellow citizens,” Pryor wrote in 2006. “In that way, we have the foremost responsibility of safeguarding our independence.”

During the fight over Abraham Lincoln’s suspension of habeas corpus during an open rebellion, Attorney General Edward Bates explained that each branch of government must use its powers in concert with what it knows to be the law regardless of the Supreme Court. “That is the sum of its [judicial] powers, ample and efficient for all the purposes of distributive justice among individual parties, but powerless to impose rules of action and of judgment upon the other departments,” Bates argued.

In this case, the Supreme Court’s ruling on the motion carries zero persuasiveness. And because it cannot block the Texas National Guard from constructing barriers, Abbott can and must continue to thwart the invasion.

Although Texas is not a separate branch of the federal government, it is an independent state and must also follow the Constitution when it runs into conflict with the Supreme Court or other branches of government.

While the federal courts can decide individual criminal and civil cases, they ultimately do not rule over other branches of government when there is a clear disagreement on constitutional interpretation. As James Madison said near the end of his life, “Each [department] must in the exercise of its functions be guided by the text of the Constitution according to its own interpretation of it.”

It’s true that states are bound by the Supremacy Clause to follow “the Laws of the United States.” But that’s only when the laws are “made in pursuance” of the Constitution. In this case, not only are the administration’s border policies, buttressed by the high court’s ruling, not in pursuance of the Constitution, they stand in contravention to the laws of the United States established in the Immigration and Nationality Act.

In one of his final speeches before his death, Justice Antonin Scalia asked the audience: “Do you think the American people would ever have ratified the Constitution if they had been told, ‘The meaning of this document shall be whatever a majority of the Supreme Court says it is’?”

The question is no longer rhetorical.

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