Inside the Brewing Fed–State Showdown at the Texas Border
Inside the Brewing Fed–State Showdown at the Texas Border

By Darlene McCormick Sanchez

EAGLE PASS, Texas—A humble city park on the Texas side of the Mexican border has taken the national stage in a showdown between Texas and the federal government.

Texas National Guard seized Shelby Park on Jan. 10 and placed a wire gate at the entrance, blocking U.S. Border Patrol agents from entering.

The 47-acre park, owned by the city of Eagle Pass, was being used as a staging area for Border Patrol agents under the direction of the Biden administration to process a massive wave of thousands of illegal immigrants crossing the Rio Grande in December.

Now, the drainage area inside the park, once teeming with illegal immigrants, is empty; the Rio Grande flows silently, mostly undisturbed by illegal crossings at the end of January on a rare rainy day in south Texas.

A blue child’s jacket, men’s black Nike shoes, a silver thermal blanket, and a jumble of clothing caught in the razor wire remain as a reminder of the hordes of foreigners from around the world who entered Texas just a few weeks ago.

Texas guard members were busy assembling more razor wire this week, also called Concertina wire, to place on anti-climb fencing soon to be mounted on shipping containers lining the river, despite a recent U.S. Supreme Court decision.

For guardsmen and officers with the Texas Department of Public Safety (DPS) who also occupy the park, the dramatic decrease in crossings is a sign that the deterrent is working—at least for now.

“We have to do something,” said Rene Cordova, DPS Staff Sgt. and public information officer, while guardsmen worked in the background at the park preparing razor-wire barriers on Jan. 23.

“Do you think they want to solve this problem?” he asked. “There’s too much money.”

Sgt. Cordova told The Epoch Times that the Mexican cartels now make more money on illegal immigration than drugs.

The Border Patrol’s presence is a magnet for illegal immigrants who are looking for their “green uniforms” to “help them,” Sgt. Cordova said.

Once word gets out among the illegal immigrants that Border Patrol is absent, crossing attempts slow to a trickle, he said.

During four hours at the park on Jan. 23, only two illegal immigrants were spotted crossing the river. One 17-year-old Guatemalan came to a dead end after navigating his way through a field of razor wire.

The Texas National Guard turned him away at the fence, directing him to the nearby international bridge, which is a legal point of entry into the country.

An illegal immigrant from Guatemala reaches a dead end on trying to enter Shelby Park in Eagle Pass, Texas, on Jan. 23, 2024. (Darlene McCormick Sanchez/The Epoch Times)

With Sgt. Cordova translating, the teen told the Epoch Times he had family in Atlanta where he wanted to work. He denied paying anyone to get to the border, which is a typical response, according to Sgt. Cordova.

The U.S. Supreme Court voted 5–4 on Jan. 22 to allow federal agents to resume cutting the state’s Concertina wire along the U.S. side of the river that is hindering illegal entry and blocking Border Patrol agents from processing illegal migrants while the case winds its way through the court system.

The Biden administration filed an emergency request with the high court arguing the razor wire is barring federal agents from carrying out their duties.

Legal filings argued federal agents were blocked from passing through or removing physical obstacles erected by Texas that prevent access to the very border they are charged with patrolling and “the individuals they are charged with apprehending and inspecting.”

Texas Gov. Greg Abbott is defiantly standing his ground, despite an escalating war of words with the Biden administration, which renewed demands for Texas to allow “full access to Shelby Park” by Jan. 26.

The Republican governor responded by saying the federal government had “broken its compact” with the state by allowing 6 million illegal immigrants to cross the southern border

in the past three years. He accused the president of failing to protect Texas and other states from an invasion.

“James Madison, Alexander Hamilton, and the other visionaries who wrote the U.S. Constitution foresaw that states should not be left to the mercy of a lawless president who does nothing to stop external threats like cartels smuggling millions of illegal immigrants across the border,” Mr. Abbott wrote.

Texas Gov. Greg Abbott speaks during a news conference at the Texas State Capitol in Austin, Texas, on June 8, 2023. (Brandon Bell/Getty Images)

Texas Attorney General Ken Paxton, also a Republican, vowed to protect Texas and her citizens despite the Supreme Court ruling.

“This fight is not over, and I look forward to defending our state’s sovereignty,” Mr. Paxton said in a statement on Jan. 22.

“The Supreme Court’s temporary order allows Biden to continue his illegal effort to aid the foreign invasion of America,” Mr. Paxton said. “The destruction of Texas’s border barriers will not help enforce the law or keep American citizens safe.”

At least 25 other states have signed a letter supporting Texas and pledging support for its constitutional right to defend its border.

Lt. Christopher Olivarez, a spokesman for DPS’s South Texas region, told The Epoch Times the Supreme Court ruling had not changed DPS’s mission.

“There still is restricted access to U.S. Border Patrol to enter the park,” he said. Agents also have access to the park’s boat ramp to carry out their river patrols.

Texas continues to put up razor wire as well. The only difference is the Supreme Court gave Border Patrol the authority to cut the wire, if needed, he said.

Texas National Guardsmen add razor wire and barriers along the U.S.–Mexico border in Shelby Park, Eagle Pass, Texas, on Jan. 23, 2024. (Charlotte Cuthbertson/The Epoch Times)

Currently, the park is being occupied by Texas guardsmen under a disaster declaration renewed by Mr. Abbott in December 2023, he said.

Though he doesn’t foresee a clash between federal and state agents, Lt. Olivarez acknowledged the unusual position law enforcement on both sides find themselves in.

“This is an unprecedented situation we’re in right now,” he said.

“Border Patrol, DPS, National Guard—we’re kind of in the middle of that. We understand they have their orders, and we have ours,” he said.

DPS officers have been arresting single adult males and females who cross into the park under state criminal trespass laws. Families are being handed over to Border Patrol, according to Sgt. Cordova.

After being arrested for trespassing, illegal immigrants are seen by a magistrate. And those who are sentenced will serve time in a Texas jail expressly set up for them, he said.

Once they have served their time, which can be several months, illegal immigrants are turned over to Immigration and Customs Enforcement, Sgt. Cordova said.

Come and Take It

According to conservative pundits, the situation could trigger one of the most consequential constitutional battles of the century, centered on the power and function of government.

Joshua Treviño is chief of intelligence and research at the Texas Public Policy Foundation, a conservative think tank.

He sees the standoff between Mr. Abbott and the Biden administration as a defining moment that strikes at the heart of the function of government.

“I don’t think that’s an exaggeration to say what’s really at stake on the border—and who knew Eagle Pass would be the place—a very fundamental question of what American governance is for and who it is for,” he told The Epoch Times.

As tensions mount, Mr. Treviño said there have even been calls from those on the left, such as Rep. Joaquin Castro (D-Texas), to federalize the Texas National Guard and, therefore, federally take over Shelby Park.

President Joe Biden speaks with U.S. Customs and Border Protection officers as he visits the U.S.-Mexico border in El Paso, Texas, on Jan. 8, 2023. (Jim Watson/AFP via Getty Images)

“So there’s no question in my mind that it’s a live issue. And it will become increasingly acute,” Mr. Treviño said.

With illegal immigration taking front and center stage in the upcoming presidential race, Mr. Treviño believes President Biden understands that Mexican President Andres Manuel Lopez Obrador needs “to keep a lid on the crisis” until after the November election.

“One of the things that they have asked the Biden administration to do is to crack down on Texas,” he said.

“We publish a ton of research on this … the Mexican state and the cartels are not antagonists to one another.”

Mr. Treviño said officials in Mexico have openly called for President Biden to stop Texas from interfering with the flow of illegal immigrants.

The Biden administration did just that immediately after Secretary of State Antony Blinken and Homeland Security Secretary Alejandro Mayorkas met with President Obrador in late December 2023, he said.

“It is not coincidental that literally 24 hours later, the Department of Justice announced this lawsuit against the enactment of SB 4 in Texas, which is the law that gives Texas the ability to arrest and deport,” he said.

Mr. Abbott, who first declared a border disaster in 2021, took full control of Shelby Park in mid-January to protect Texas from illegal immigration.

Biden’s Department of Homeland Security warned Mr. Paxton on Jan. 14 that it would take legal action if Texas didn’t allow Border Patrol agents access.

Texas Attorney General Ken Paxton (C), flanked by other state officials, talks to reporters in front of the U.S. Supreme Court in Washington on April 26, 2022. (Chip Somodevilla/Getty Images)

And that may be precisely what the state’s top lawyer wants.

Mr. Paxton responded with a statement that Texas will continue to guard the park on the Rio Grande to prevent what he calls Biden’s “open-borders campaign promise.”

He accused the federal government of shirking its responsibility to uphold Article IV of the U.S. Constitution, which guarantees protection against invaders.

On the horizon is Texas Senate Bill 4, signed by Mr. Abbott in December 2023, and which has already been challenged by the Biden administration.

The law, which goes into effect in March, makes crossing illegally into Texas a state crime, giving all law enforcement in the state the power to arrest illegal immigrants on felony charges of unlawful entry from a foreign nation. It carries a penalty of up to 20 years in prison.

It also allows state judges to issue de facto deportation orders against violators of the law, though it’s unclear how Texas would enforce the provision.

The standoff pitting the state’s rights against federal pusback appears to be headed to the U.S. Supreme Court. States’ Rights

Mike Howell is director of the Oversight Project, which develops conservative government policy models at the Washington-based Heritage Foundation.

Mr. Howell told The Epoch Times that the Texas case could prove successful, unlike the 2012 Arizona vs. The United States decision, in which the high court held that states can’t carry out their own immigration laws.

There has been speculation that a more conservative Supreme Court might see states’ rights differently should the issue be taken up, he said.

“What Texas is doing at the border cannot be interpreted in any way, shape, or form as interfering with the feds,” he said.

Mr. Howell said Texas is trying to secure the border, so he doesn’t think the federal government will be successful in arguing that it is interfering.

National Guard soldiers stand guard on the banks of the Rio Grande river at Shelby Park in Eagle Pass, Texas, on Jan. 12, 2024. (Brandon Bell/Getty Images)

“I don’t think the framers of the Constitution ever contemplated a situation in which the chief executive through his departments would basically turn over the sovereignty of the United States,” Mr. Howell said.

“It’s truly, I believe, probably the biggest constitutional crisis of our lifetimes.”

Jonathan Hullihan was an attorney in the U.S. Navy and has a background in national security law. He currently serves as a lawyer representing Citizens Defending Freedom in Texas.

He agrees that a raw power grab by President Biden would trigger a crisis, since Mr. Abbott has already invoked the compact clause, which allows states to defend and protect themselves.

To federalize a state-controlled guard to seize power from a governor would create a constitutional crisis, he said.

A key part of Mr. Abbott’s Jan. 24 letter to President Biden referred to the dissenting opinion made by Justice Antonin Scalia in Arizona vs. United States, which noted that states have a “sovereign interest in protecting their border.”

Mr. Hullihan contends that the legal battle really isn’t about immigration, but about a state’s right to protect itself, which stands a much higher likelihood of being successfully argued in court.

Those on the left may argue there’s a precedent for using the National Guard, such as when President John F. Kennedy federalized the guard to force desegregation at The University of Alabama in the 1960s, he said.

But Mr. Hullihan said racial segregation isn’t part of Texas’ argument, which hinges on self defense against harm that includes a massive influx of deadly drugs such as fentanyl.

“This is kind of nuts, right?” he asked. “The state is invoking authority under the Constitution, and the president would be invoking authority as commander and chief.”

Mr. Howell said he believes Texas is doing the right thing.

“If the Biden administration—at the end of the barrel of a gun—wants to go in and visibly unsecure the border by removing Texas, I think the American people deserve to see it.”

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