Eagle Pass tensions are 'unprecedented,' but it isn't 'civil war'

Jeff Cercone and Maria Ramirez Uribe
·8 min read
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A Texas National Guard soldier patrols the banks of the Rio Grande in Eagle Pass. The Texas National Guard and the U.S. Border Patrol have been at odds over access to parts of the border in Texas.
A Texas National Guard soldier patrols the banks of the Rio Grande in Eagle Pass. The Texas National Guard and the U.S. Border Patrol have been at odds over access to parts of the border in Texas.

Texas and the federal government are fighting each other in court over who should take charge of an area in Texas that borders Mexico.

Republican Gov. Greg Abbott argues that the Biden administration isn’t doing enough to control illegal border crossings. Abbott ordered the Texas National Guard to install razor wire along the Rio Grande near Eagle Pass. The goal: to block migrants’ path into the country.

But Biden administration officials and Homeland Security Department court filings say Texas is blocking U.S. Border Patrol agents’ ability to do their jobs. The wire blocks Border Patrol from entering Shelby Park, which federal agents have used to process paperwork for migrants. People who reach the area are already on U.S. soil.

The battle has fueled social media posts that question whether a new civil war is underway.

Texas’ actions restricting the Border Patrol’s movements are "quite unprecedented," said Stephen Vladeck, a University of Texas law professor.

"I’m not aware of, and Texas hasn’t identified, a prior case in which state authorities physically impeded the federal government’s access to an international border," Vladeck said.

Despite the disagreements, however, the Civil War comparisons don’t fit well here, immigration and legal experts told us. The landscape of mid-1800s U.S. was vastly different, they said, and federal-state conflicts before and after the war — including over fugitive slaves, school integration and taxes — are not uncommon. Although Texas’ actions might be considered aggressive, none told us they expect the dispute to go beyond the courtroom.

The legal battle over razor wire and border control

Texas sued the Biden administration in October for cutting razor wire installed by the Texas National Guard along the Mexico border. State Attorney General Ken Paxton argued that the federal government "illegally destroyed" Texas property and "disrupted" Texas’ ability to stop illegal entries.

But the Biden administration says Border Patrol agents need access to an area cordoned off by Texas so they can respond to medical emergencies involving migrants.

In January, after lower court appeals by both sides, the Biden administration asked the U.S. Supreme Court for an emergency decision. Homeland Security said the Texas National Guard had added more razor wire along a 2.5-mile stretch of the border and restricted the Border Patrol’s ability to reach the Rio Grande and access to Shelby Park, which agents use for migrant inspections.

On Jan. 22, the court sided with the Biden administration in a 5-4 decision, granting its request to let it remove the razor wire, at least while a lawsuit plays out in lower courts. After the decision, Abbott said on X that he "will continue to defend Texas' constitutional authority to secure the border and prevent the Biden Admin from destroying our property."

CBS News reported that Texas National Guard members began adding additional razor wire the day after the Supreme Court decision.

The battle over the blocked-off area escalated after three migrants, two of them children, drowned Jan. 12 on the Rio Grande. Two other migrants who survived were in distress on the river, but Border Patrol agents could not get to them because of the blocked access, Homeland Security said in a lawsuit over the razor wire. Texas responded that Border Patrol agents did not request access to the migrants.

This is not the first state-federal immigration tug-of-war

States and the federal government have previously disagreed over immigration enforcement. That’s the case with dozens of states, cities and counties across the U.S. that have enacted "sanctuary" policies limiting their cooperation with federal immigration authorities.

But "no sanctuary city has ever prevented federal immigration from coming into their territory in the same way that Texas is trying to do," said Huyen Pham, a Texas A&M University law professor.

There’s a difference between local and state governments not cooperating with federal authorities and interfering with them, Vladeck said.

"Under the U.S. Constitution, local and state governments can choose whether to help the federal government enforce federal law," Vladeck said. "They can’t hinder the federal government from enforcing federal law."

Are Civil War comparisons apt?

A comparison between the Texas-Biden dispute and the Civil War is an imperfect one, as the relationship between the federal government and state troops is far more regulated now than it was in the 19th century, said Cecily Zander, a Texas Woman’s University assistant history professor.

"Biden has the option to supersede Gov. Abbott’s authority and federalize the Texas National Guard to compel them to move away from the border, since Texas remains in the Union," said Zander. That wasn’t an option for President Abraham Lincoln, Zander said, because Texas didn’t recognize the federal government’s authority in 1861, she said.

States have tried to block federal action many times, before and after the Civil War, said Lorien Foote, a Texas A&M history professor. For example, states tried to tax the national bank out of existence, and northern states used state officials to defy the federal fugitive slave laws, she said.

"The conflicts of federalism are embedded in all parts of our history in the 19th and 20th centuries," Foote said.

Daniel Morales, a University of Houston Law Center associate law professor, believes that the Texas-Biden administration feud will be confined to courtrooms, but he made a Civil War analogy to describe Abbott’s actions.

The best analogy, "given the dueling military-adjacent operations, is the Battle of Fort Sumter, which started the Civil War. That’s how bellicose this action is by Gov. Abbott," Morales said, referring to the 1861 battle in which Confederate forces attacked a South Carolina base occupied by Union forces.

Morales also compared Texas’ stance to the resistance of Southern states with integration, which resulted in federal troops integrating some schools at gunpoint.

"Abbott is using state-controlled troops to defy" federal law "in a way, that rhymes with both historical moments," Morales said.

Still, "the confrontation on the Texas border is nothing close to the sectional crisis, mass political conflict, and violence that led to the Civil War," said Michael Parrish, a Baylor University history professor emeritus.

What happens next?

Ultimately, the courts will decide whether Texas’ actions are legal and whether the federal government has superseding authority on immigration matters. The cases might end up back at the Supreme Court.

Pham said the current, more conservative Supreme Court might be open to some things Texas wants, such as arresting immigrants for state-based crimes, but not to blocking the Border Patrol from accessing the border.

That "seems like such a direct challenge to a really bedrock principle of immigration federalism that I think even this court would be reluctant to allow," Pham said.

Our sources

This article originally appeared on Austin American-Statesman: Eagle Pass tensions are 'unprecedented,' but it isn't 'civil war'