I ran across this today

Texas Is Entitled to Use Military Force to Repel the Border Invasion

Lt. Gen. Michael Flynn

January 24, 2024

The Supreme Court’s decision this week to order Texas not to protect its border

with Mexico will go down in history as one of that Court’s most cowardly decisions which

could doom of our nation — if it is allowed to stand. That decision was not just about

razor wire — it was about the role of states in our federal system, and the betrayal of

the nation – first by a President, and now by two Republican-appointed Justices.

I ask you to invest the time to stay with me through this article — as we need to

spend some time together to think through the background for the crisis that is now

upon us — for it could be a truly existential threat to the nation.

Biden and The Wall

Within hours of Biden being sworn into office, he signed a Proclamation that

ordered an end to construction of President Trump’s southern border wall. His stated

reason was that the wall was “a waste of money that diverts attention from genuine

threats to our homeland security.” This statement was so absurd that we knew at once

that this man who had somehow assumed the Presidency was not on our side. Biden

had just sworn the President’s constitutionally prescribed oath to “preserve, protect and

defend the Constitution of the United States,” and within hours he flung open the

nation’s borders to all comers. Biden was announcing that he was the second act of the

Obama Administration to “fundamentally transform” the United States. Biden was

declaring that the Trump years were over, and the revolutionaries were back in charge.

Was the Trump wall really a “waste of money?” The establishment press had

attacked Trump for spending $11 billion to put barriers along around 50 miles of our

southern border. But the corrupt press thought nothing of spending more than 10 times

that to defend Ukraine and its border. And the House GOP now estimates the annual

cost of the Biden open border in caring for illegal aliens will be $451 billion. Biden

opened the door, and over 3.8 million people walked through. That number of illegals is

greater than the population of at least 22 states and is on the verge of destroying the

nation in every way by causing crime, drug deaths, child trafficking, terrorism, deficit

spending, and more. He could not have done any more damage to the nation if he had

tried.

Did the wall really “divert attention from genuine threats to our homeland

security?” Under Biden, military age men are pouring over the border from countries

that despise our nation. Migrants on the Terrorism Watch List keep walking through —

with only some being identified. Biden’s claims about the Wall were so patently false,

so in your face, that we got his thuggish message — we have the power and we know

how to use it.

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Where were the Congressional Republicans?

Americans have been waiting for a very long time for Republicans to bring an

end to the chaos. We held our breath and waited during Biden’s first two years, when

Democrats enjoyed a majority of the House and a tie in the Senate which the Vice

President could break in his favor. But for the last year, since January 2023, when

Republicans took control of the House, we have waited for our party to do whatever is

necessary to stop this existential threat to the nation. Remember that no money can be

spent from the U.S. Treasury without approval by the House. Republicans could have

stopped the assault on our borders, but they didn’t. For whatever reason — loyalty to

the billionaire donor class, fear of the negative press, whatever — they caved, being

afraid they would be blamed for a government shutdown.

Meanwhile the message from rank-and-file Republicans — but not outliers like

Nikki Haley — has been simple: CLOSE THE BORDER. While we waited for

Republicans to act, the border crisis got so bad that some Congressional Democrats —

including five U.S. Senators — have begun to break with Biden. It’s time for House

Republicans to close ranks and do whatever is necessary to support Texas in its

defense of a border that Biden will not defend.

States Defending the Nation

Then we Republicans looked to the states to rise up and take real action to

defend our borders. We knew Gavin Newsom in California was a lost cause. Doug

Ducey was a McCain clone — shown to be uninterested in election fraud — who would

do nothing to protect his constituents. Then in January 2023, Katie Hobbs took over

Arizona and the Republican legislature had little stomach to fight her.

But finally, Texas Governor Greg Abbott, no doubt pushed by solid conservative

Texas Attorney General Ken Paxton, started to take action. He installed razor wire

along a 30-mile stretch and set up a floating barrier, and he deserves enormous credit

and our support for trying to save not only Texas — but the nation.

The Cowardice of Courts

Predictably, the Biden Department of Homeland Security, headed by Secretary

Alejandro Mayorkas, challenged Texas’ razor wire fence in federal court. While Abbott

prevailed in the relatively conservative Fifth Circuit, on January 22, the Supreme Court

sided with Biden and against the American People.

The High Court voted 5-to-4 order to give the Biden Administration exclusive

control over the U.S.-Mexico border. In little more than a sentence, the Court vacated

the Fifth Circuit’s injunction against the Department of Homeland Security’s removal of

razor wire that had been installed on the border at the direction of Governor Abbott.

Although the Supreme Court decision is not a ruling on the merits, it leaves the nation’s

Southern Border wide open until the courts get around to ruling on Biden’s pending

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challenge to Abbott. That litigation could take until Biden’s term ends next January. But

this is not a ruling just against Governor Abbott — it is a ruling against the American

People.

We have come to expect Justices Kagan, Sotomayor, and now Jackson to

embrace the Democratic vision of open borders, but yesterday they were joined by the

Chief Justice John Roberts and Justice Amy Coney Barrett. These justices simply

could not have believed the official reason given by the Biden Administration for its

application to undo the injunction — to protect the safety of illegal aliens crossing into

the United States. The real reason was to allow the Biden Administration to order

Border Patrol officers to cut Abbott’s wire fence to reopen the border to facilitate the

invasion of the nation by illegal aliens.

And, this is not the only case where Texas’ efforts to protect its borders have

been thwarted by federal courts. Last month, the Fifth Circuit heard a challenge to

Texas’ floating barrier in the Rio Grande, and in that case, the court of appeals sided

with the Biden Administration and ordered the removal of Texas’ floating barrier.

The Constitutional Questions

In normal times, there might be time to wait for the judicial process to play out

and see if the Supreme Court reverses its position. But these are not normal times.

America is being overrun by an invasion of people from all over the world.

Making the matter even more serious, in an increasingly dangerous world, the

immigrants could constitute a Fifth Column. In allowing this invasion, Biden has not just

been inept — he is deeply corrupt. As I said, he is carrying out Obama’s plan for

“fundamentally transforming” America — for the worse.

What can be done? We need Texans to rally behind Governor Abbott. It is a

time for other states to rally behind Texas. And, this just may be a time that the People

need to find a way around an obviously unconstitutional Supreme Court ruling. This

ruling deserves as much respect as its Dred Scott decision that no African-American

could be a citizen, or its Korematsu decision that approved locking up Japanese-

Americans during World War II, or its Roe v. Wade decision that led to the death of well

over 40 million babies. The Supreme Court can be wrong, and often is.

This decision is as wrong as it can be. We will see how far Governor Abbott and

Attorney General Ken Paxton are willing to push this, but I plan to stand with them. This

is not a close call. But we must not act rashly. We need to be certain that we are on

the right side of the law and the Constitution. The Roberts-Barrett capitulation to the

Biden Administration raises two constitutional questions — both of enormous

consequence.

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First, what authority does the State of Texas have to defend its own border?

Stated the other way, what authority does the federal government have to stop Texas

from defending its own border?

Second, who decides whether the Biden Administration or Governor Abbott is

right? Can the States trust federal courts — part of the federal government — to decide

these federal-state power disputes fairly? If not, who decides?

State Constitutional Authority

Today, I want to focus on the first issue. Article IV, Sec. 4, cl. 3 of the

Constitution states: “The United States shall ... protect each [State] against Invasion.”

Biden has not just failed that duty miserably, he chose not to honor that duty. In such

cases, the Constitution also allows states to use force to repel invasions. Although the

power to wage war is generally reserved to Congress, the Constitution even allows

States to use force, up to and including “war,” in case of invasion.

No State shall, without the Consent of Congress ... engage in War, unless

actually invaded, or in such imminent Danger as will not admit of delay.

[Article I, Sec. 10, cl. 3 (emphasis added).]

An Actual Invasion

A majority of Americans, including a plurality of Democrats, now believe that

there is an invasion at the southern border. Fifty-one Texas counties have declared that

an invasion exists. Under the Biden administration, Texas alone has dealt with a rush

of almost 2 million illegals.

It is clearly an invasion. “‘Demographically, socially and culturally, the

reconquista of the Southwest United States by Mexico is well under way,’ Harvard

University professor Samuel P. Huntington said in 2004. ‘No other immigrant group in

U.S. history has asserted or could assert a historical claim to U.S. territory. Mexicans

and Mexican-Americans can and do make that claim,’ he said.” The proof is in the

history since Huntington’s 2004 comments.

According to the House Homeland Security Committee, “169 individuals on the

terrorist watchlist were apprehended attempting to enter the country illegally, and at

least 1.7 million known gotaways have evaded apprehension since FY2021.” In fiscal

year 2023 alone, U.S. Customs and Border Protection (“CBP”) “has arrested 35,433

aliens with criminal convictions or outstanding warrants nationwide, including 598

known gang members, 178 of those being MS-13 members.... CBP ... has seized

27,293 pounds of fentanyl, coming across the Southwest border—enough to kill more

than 6 billion people.”

An estimated 2.2 million illegal aliens live in Texas alone, at a cost of over $9

billion to Texas taxpayers, $4,466 per illegal alien just for public education of alien

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children. The total financial costs to Texas of illegal aliens are over $13 billion per year.

The fiscal nightmare alone is unsustainable for Texas.

Americans have also paid a steep price in criminal activity by illegal aliens. “In

2022 alone, U.S. Customs and Border Protection arrested 1,142 illegal aliens who were

convicted of assault, battery, or domestic violence; 1,614 who were convicted of driving

under the influence; and 2,239 who were convicted of drug possession and trafficking.

Additionally, CBP arrested 62 illegal aliens convicted of homicide or manslaughter and

365 convicted of sexual offenses.” These are just the ones who were caught.

According to the Texas Department of Public Safety, between 2011 and 2023:

297,000 illegal aliens were charged with more than 509,000 criminal

offenses which included arrests for 940 homicide charges; 64,127 assault

charges; 9,246 burglary charges; 59,936 drug charges; 1128 kidnapping

charges; 25,441 theft charges; 39,694 obstructing police charges; 2,912

robbery charges; 6,422 sexual assault charges; 7,410 sexual offense

charges; and 6,193 weapon charges.

The nationwide numbers are still more staggering than the Texas numbers:

At the federal, state, and local levels, taxpayers shell out approximately

$182 billion to cover the costs incurred from the presence of more than

15.5 million illegal aliens, and about 5.4 million citizen children of illegal

aliens. That amounts to a cost burden of approximately $8,776 per illegal

alien/citizen child. The burden of illegal immigration on U.S. taxpayers is

both staggering and crippling, with the gross cost per taxpayer at $1,156

every year.

State Action Without Federal Approval

If this is not an invasion, what would an invasion look like? This may be

surprising in a world where the federal government wins most every battle with the

states, but having been invaded, Texas now has constitutional warrant to respond —

even without federal approval.

Remember, the states preexisted the federal government. The federal

government did not create the states. The federal government treats the states as if

they were administrative subdivisions of the federal government, when they are both

sovereign entities. The states have all the power and authority they had before the

ratification of the Constitution, unless they yielded that power to the federal government.

No matter what Roberts or Barrett (who increasingly seems to vote however Roberts

tells her to) may think, states did not yield the power to repel invasions to the national

government.

During the Virginia debates over ratification of the Constitution, future Chief

Justice John Marshall argued forcefully that the states retained concurrent power with

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the federal government to use military force to repel invasions or to meet imminent

danger:

In the Confederation, Congress had this power [to repel invasions]; but the

state legislatures had it also.... To me it appears, then, unquestionable

that the state governments can call forth the militia, in case the

Constitution should be adopted, in the same manner as they could

have done before its adoption. [W]hat excludes every possibility of

doubt, is the last part of it – that “no state shall engage in war, unless

actually invaded, or in such imminent danger as will not admit of delay.”

[J. Eliot, The debates in the several state conventions on the adoption of

the Federal Constitution, Vol. III, 419-420 (J.B. Lippincott: 1901)

(emphasis added).]

The Supreme Court has acknowledged the right of a state to use military force in

its own defense. “[U]nquestionably, a State may use its military power to put down an

armed insurrection, too strong to be controlled by the civil authority.” Luther v. Borden,

48 U.S. 1, 45 (1849). The Court declared this right an essential element of state

sovereignty. “The power is essential to the existence of every government,

essential to the preservation of order and free institutions, and is as necessary to the

States of this Union as to any other government. The State itself must determine

what degree of force the crisis demands.” Id. (emphasis added).

Early in our nation’s history, in Houston v. Moore, 18 U.S. 1 (1820), the U.S.

Supreme Court acknowledged the right of states to use military force without

consulting Congress. The Court’s opinion stated: “It is obvious that there are two

ways by which the militia may be called into service; the one is under State authority,

the other under authority of the United States.” Id. at 36 (emphasis added). Even in

dissent, Justice Story agreed that when Congress stands by, “the States [may]

sufficiently provide for their own safety against ... the sudden invasion of a foreign

enemy.” Id. at 51-52.

Numerous state courts have agreed, particularly in approving state military action

to resist attacks by Confederate forces during the Civil War. West Virginia is one

example: “In the second section of the first article of the constitution of the United

States, the right to engage in war without the consent of Congress, is reserved to the

States respectively, if actually invaded or in such imminent danger as will not admit of

delay....” Beirne v. Brown, 4 W. Va. 72, 79 (1870) (emphasis added).

Kentucky’s courts are in agreement: “The sovereign right and power to protect

their own government and people against invasion and domestic violence, so far from

being either delegated or prohibited, is expressly recognized by the United States

Constitution.... [I]t is provided, that no State, without the consent of Congress, shall

‘engage in war unless actually invaded, or in such imminent danger as will not admit of

delay.’” Price v. Poynter, 64 Ky. 387, 395 (1866) (emphasis added).

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Pennsylvania courts have also approved state military action in defense against

invasion:

[I]t is said that protection against invasion and insurrection is a Federal

duty. True, it is so by an express grant of power. But, by the same

constitution, every right not delegated is reserved to the states or people;

and I find no clause in the constitution by which the right of self-

protection is taken away from the states, in all respects. On the

contrary, I find that in time of war, or when actually invaded, or in imminent

danger not admitting of delay, the right of the state to keep troops or ships

of war is reserved by express exception. [Speer v. School Directors,

etc. of Blairsville, 50 Pa. 150, 164-165 (1865) (emphasis added).]

A Call to Self-Examination

In a future article, I will address whether a decision of the Supreme Court really is

the functional equivalent of the words of the Constitution and whether its decision truly

ends every dispute. But for today I will just say that despite all the historical and legal

authorities which support Texas, our illustrious Supreme Court has, at least temporarily,

stripped from Texas — and every state — the power to repeal invasion. Remember,

this is a power that the states possess, regardless of what a modern federal judge may

think.

If this were a matter of less import, I would be among the People who would

continue to suffer evils while evils are sufferable. The question for Governor Abbott, the

other States, and the People is — can we stand by and watch for another year until we

have another chance to restore order through the electoral process? Sometimes I think

that Biden’s handlers have decided to speed up the process of destroying the nation

during what may be the final year of his presidency. But even at the current rate of

illegal immigration — at what point will the Biden policies do terminal damage to our

country? And, if we sit back and watch him until January 20, 2025, what kind of a

nation will we have in a year?

In closing, I ask you to think deeply about these matters. The authority of a

sovereign State to repel an invasion, that was reinforced by the Framers of our

Constitution, has become central to the preservation of our nation. Nevertheless, two

unelected lawyers wearing robes disrespected our Federal structure to rule for Biden

over Texas and all other states. These are serious matters which the American People

must now wrestle with and pray through — with great urgency. May the public

conversation over these issues begin anew, so that appropriate action may be taken by

those in authority — before it’s too late.

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Lt. Gen. Michael T. Flynn, USA (Ret.) retired from the Army after 33 years of

distinguished service in uniform. He served as Director of the Defense Intelligence

Agency, the nation’s highest serving military intelligence office, and served as the 25 th

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National Security Advisor to the 45 th POTUS, President Donald J. Trump. He now

serves as Chairman of America’s Future, among the nation’s oldest IRC section

501(c)(3) nonprofit organizations focusing on public policy issues.