The Battle Over Borders and the States' Role in Immigration

Rick Green: 0:05

Welcome to the Intersection of Faith and the culture. It's WallBuilders, where we're taking on the hot topics of the day from a biblical, historical and constitutional perspective. Today we've got Daniel Horowitz. We're going to be talking about the border, we're going to be talking about what the Constitution says, about what states can do, and we're just going to jump right into that interview. I had a chance to interview Daniel in the tavern, which, of course, you can watch on Tuesday nights at Warrior Poets Society Network or over at PatriotU. Check those out.

Rick Green: 0:34

Go to www. patriotacademy. tv www. patriotacademy. tv if you want to see the full interview with Daniel Horowitz. This is a vital topic, obviously. Everybody's talking about it, paying attention to what's happening at the border, and we want to make sure that we keep you Constitutionally informed, and so Daniel's been following us closely, been writing about it for years actually, and really researching what states can do and encouraging governors to stand, and, of course, not enough of that has happened. I've been a very vocal critic of governors not willing to seal the border and secure the border like they should, and it looks like Greg Abbott is finally doing that, and so this is good news, very good news, and the tone and the attitude and all of those things are moving in the right direction. So, anyway, we're going to jump right into the tavern with Daniel Horowitz and again, you can see the entire interview, the video and audio, at www. patriotacadem y. tv.

Rick Green: 1:29

Here's Daniel Horowitz joining me in the tavern. Welcome back to the tavern, Daniel Horowitz in the house. Always good to have Daniel, who does not have a mug with him. So I'll pretend and, Daniel, you just fist bump my giant Viking tavern mug. Hey, man, good to see you, buddy.

Daniel Horowitz: 1:43

Hey I got something better. I got my Patriot Academy hat on, just for you.

Rick Green: 1:47

I love it, man, I love it. Hey, it's great to have you. I know that you love American history as much as I do. So this whole idea of the tavern and going back to almost secret conversations of all right, what can we do to save this country? Our window of opportunity right now as people are hopefully paying attention and at least listening to the principles. We don't know how long that window is going to be open, so that's why it's important to have these conversations now, and I have been following you ever since COVID hit and really the government's overreaction to COVID hit is the way I should say that. But not even. And we got to come to COVID. But right now, with the Texas border and the chaos that's going on and Greg Abbott wow, finally saying the things that you and I have said for years about how states should be standing up to this and why they do have the constitutional authority to do this.

Rick Green: 2:41

I had to get you in here because I'm honestly in a little bit of shock. I expected Abbott to cave very quickly. I thought it was another all hat, no cattle, all for show kind of a thing. His statement man, I mean it's like he read a Daniel Horowitz article on The Blaze and said look, I can actually quote article one, section 10. I'm going to quote Scalia from the dissent in US v. Arizona, which nobody was talking about but you, and then I was quoting you. I mean, anyway, I just had to get your response to this and get your thoughts, and then maybe we'll dive a little bit further, but just first your initial response to the literal standoff at the border.

Daniel Horowitz: 3:31

You know all of us in our circles are really excited this week because we finally have the broken conservative media focused on what should be the top story of the week. often what is and what is focused on don't really match up, and this week I think it does all hands on deck and it really is a potential pivotal moment. But we have to make sure we see it through. So you know what's the pivotal moment? Just just real, real, simple. Over and beyond the border invasion, really every other malfeasance we're dealing with from the federal government, we need to slay two dragons; the concept that the federal government is supreme to the states when it is violating the Constitution and the law, and the concept that the Supreme Court or the federal judiciary stands atop that food chain and is, as Abraham Lincoln said, thus says the Lord, you know when he was mocking the concept of judicial supremacism. If we see this fight through, we have the perfect opportunity to slay both dragons, because the underlying issue is so absurd and indefensible that not only are they abiding by their Article 4, section 4 guarantee clause dictate to protect the states from invasion, but how Border Patrol is now being marshaled into working for the cartels and smugglers and defeating Texas's border security so we can seamlessly let in millions of people. It is indefensible. It's something that Democrats cannot withstand: a focused national fight. Now imagine if, coinciding with the states pushing back, you had a federal funding fight that they wouldn't have passed that dumb bill last week and we would have had a shutdown fight. Really accentuating public attention to this issue would be even better.

Daniel Horowitz: 5:11

But this is this is good. So I mean, he cited all the right authorities. That -and let me just say this, Justice Robert Jackson said famously in the 1949 case, the Constitution itself is not a suicide pact. So even if the Constitution said this, it could never compel such a result. But obviously it says the opposite. The federal law, the laws of the United States, are supreme if it's pursuant to there of the Constitution. Now in this case, it's even better because it's the feds who are violating the INA. Okay, it's not- so he's fully covered. Now here's where the rubber meets the road. A lot of my colleagues are dancing around and they're like man, we finally did it. Now we've just taken a step. It's good and he's saying the right things. But to your point, it has been three years into this unimaginable, unimaginable invasion that I mean I don't know if we can come back from that. I don't think we have yet.

Rick Green: 6:29

I mean, it's an immeasurable amount of damage. And actually let me try to restate what you said, because I think this is critical. I want people to really get this. So you said there are two dragons potentially here to slay. All right, wait, hold on folks. We got to exit out of the tavern for a moment here. We got to take a quick break for The WallBuilders Show. We'll be back and we will get some more of that interview with Daniel Horowitz in the tavern. Stay with us. You're listening to the WallBuilders Show.

Tim Barton: 7:01

Hi friends! This is Tim Barton of WallBuilders. This is the time when most Americans don't know much about American history or even Heroes of the Faith, and I know oftentimes for parents we're trying to find good content for our kids to read and if you remember, back to the Bible, to the book of Hebrews, it has the Faith Hall of Fame where they outlined the leaders of faith that had gone before them. Well, this is something that, as Americans, we really want to go back and outline some of these heroes, not just of American history, but heroes of Christianity and our faith as well. I want to let you know about some biographical sketches we have available on our website.

Tim Barton: 7:29

One is called the Courageous Leaders Collection and this collection includes people like Abigail Adams, Abraham Lincoln, Francis Scott Key, George Washington Carver, Susanna Wesley, even the Wright Brothers, and there's a second collection called Heroes of History. In this collection you'll read about people like Benjamin Franklin or Christopher Columbus, Daniel Boone, George Washington, Harriet Tubman, friends. The list goes on and on. This is a great collection for your young person to have and read and it's a provincial view of American and Christian history. This is available at wallbuilders. com.

Rick Green: 8:04

We're back here on the Wall Builders Show Thanks for staying with us. I'm Rick Green, America's Constitution Coach, Appreciate you staying with us and normally here with David Barton and Tim Barton. David, of course, America's premier historian and our founder at Wall Builders. Tim Barton, national speaker and pastor and president of Wall Builders. Today we're actually sharing with you an interview I had a chance to do in the tavern this week and it airs in its entirety tonight on the tavern. So go to patriotacademy. tv, it's patriotacademy. tv and you can see the full interview with Daniel Horowitz.

Rick Green: 8:31

We really dive into the history of the border and that sort of thing and what the courts have said and what can be done here and how important this is. And as we were going to break, I was just about to restate the two dragons that we can slay with this particular stand at the border. So let's jump right back in with Daniel Horowitz in the tavern. I want people to really get this. So you said there are two dragons potentially here to slay, and they're both- we do these Constitution things together and we've talked about this a lot, but I still think 99.9% of people don't realize how big these two battles are, and so you stated them, and let me try to restate what you said. The two dragons are: Number one, that the feds are basically final say on everything. The states have no power, essentially federalism redefined to mean that the federal government gets all the power and the states are just along for the ride. And instead we have a chance to actually get back to the actual definition of federalism that the feds have few undefined powers and the states are the ones that ultimately can make the final decision and, certainly, through amendments, override what the federal government does. And then the second dragon is at that federal level, how did you say it that the Supreme Court sits atop the food chain? Right? In reality, there's supposed to be the weakest branch, according to even Hamilton in the federalist paper. So those are two huge issues about how the world should work, about how the government should work, about how America should work, and here, with this border issue, we potentially have the opportunity to slay both of those.

Rick Green: 10:09

And then you were talking about the statute itself. Let's dive into that a little bit, because the feds are claiming no, no, no, we need to be able to get into that area of the border in order to fulfill federal law, and then they don't even quote what the federal law actually says, which I will quote. It says for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States, and they're throwing a rope to the illegal aliens. Cut the wire, throw the rope to the illegal aliens and help them into the country and say oh, it's a mile down the road, would you please stop by the processing center? I mean, that's literally what they did on September 20th, which is what this whole case revolves around. Okay, sorry, Did I accurately restate? Was that the proper statement of the two dragons or not?

Daniel Horowitz: 10:54

Absolutely. Those were the two dragons. And again, that's even when the federal law legitimately says what they say, but it's unconstitutional. Here the law is the opposite. I mean, people forget 2006, you have the Secure Fence Act passed by I want to say 82-18, supermajority in the Senate. I believe Schumer and a lot of that Biden, a lot of the big-time Democrats, Hillary Clinton, voted for it. Now what did it say? So it provided for construction of a border fence that they didn't wind up doing. But it also said that the DHS secretary had to achieve full operational control within 18 months. And Section 2b of that law defined operational controls the prevention of ALL unlawful entries into the US, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics and other contraband. So they are required to do that and they are waving in those aliens. They're actually - they created an app, a phone app, to invite them to come in.

Rick Green: 11:55

And here's a phone, and here's some money, and here's a hotel and we're gonna put you in a luxury hotel. I'm sorry, go ahead.

Daniel Horowitz: 12:00

And plane tickets. They're flying them into the airports, the land, but they're also flying them into the airports. So this is not just a violation of the INA and the Constitution, it's actually a violation of the social compact, the underpinnings of why you have a federal government, to do what's right by the people, to pursue the general welfare.

Rick Green: 12:21

Which Abbott even used that language. I don't remember him saying this. When he declared the invasion last year. He actually started his statement saying the feds have violated the compact with the states. Maybe he used that last year, I don't think he did. And for him to use that language to me felt like a totally different tone position. All of that. He sounded like us.

Daniel Horowitz: 12:42

He mentioned the compact clause. Now, you know, Ken Paxton, in his legal filings as of today, has not mentioned that and that is a little bit concerning. But what's important about the compact clause? That whatever there is, you know the compact clause, the implication that a state cannot raise an army and engage in offensive military actions except, so it's the exception part of that clause, when there's an invasion or imminent danger. and just as which makes sense, by the way, right, like, just if we got the time machine, you wouldn't want all the states going and invading other countries and doing their own thing, right?

Rick Green: 13:22

which makes sense by the way. If we got a time machine, you wouldn't want all the states going and invading other countries and doing their own thing, right? Yeah, make sense. But then obviously the exception.

Daniel Horowitz: 13:25

Mind you, we're talking about defensive measures. We're not even talking about, but they show that during a time of invasion and imminent danger, you could even pursue offensive actions. So you could have the Texas military forces, you know, bringing their planes, bringing their ships to Mexico, deal with the cartels, deal with the smugglers, arrest them, whatever.

Rick Green: 13:46

To stop the invasion. It's defensive in nature, but you're having to be offensive on the other side of the river, which is a part of we got to get into this at some point too is that's one big difference between what guys like you and me and Russ Vaughan and other people are saying yeah, we're saying you have to go to the other side of the border, create a green zone or whatever, to be able to push these people back and have a place to put them on the other side of the border, whereas so far, Abbott is only going as far as to say we're gonna stand against you cutting our wire, but we're not necessarily gonna -in other words, his position has been we're now going to arrest him and put him in jail, but on our side of the border, instead of what we're saying is yeah, we do need to go a step further, and that's that.

Daniel Horowitz: 14:25

We do need to go a step further and I do want to say it's important that this could be a good inflection in terms of judicial supremacism, supremacy of the feds, things like that like we talked about. But as far as the border itself, we have to make sure that Eagle Pass razor wire doesn't become a red herring and, the feds might become so embarrassed they'll back down, but they'll do it everywhere else. So we have to have more of a systemic approach and I agree with that. But I want to read to you from Joseph's story, just a story explaining that this wasn't just a throwaway line. This except that states can not engage in offensive measures except when invaded. Time of imminent danger, he said.

Rick Green: 15:06

Still- and wait, wait, Daniel, for just for our viewers that never heard of Joseph's story, just so you guys know this guy's one of the two fathers of American jurisprudence, served in the Supreme Court for many years, wrote most of the opinions, frankly, when he was on the court. Huge influence on American jurisprudence, you know, during the fou-, for really about 40 years into the beginning of the nation. So anyway, huge, huge voice you're quoting like if there's an expert on how this thing should work, this is the guy. Go ahead.

Daniel Horowitz: 15:33

Yeah, and the Supreme Court will always quote him when trying to understand the original interpretation. So he said still, a state may be so situated and it may become indispensable to possess military forces to resist an expected invasion or insurrection. The danger may be too imminent for delay and under such circumstances, a state will have a right to raise troops for its own safety, even without the consent of Congress. Now, today, it's not so much a lack of communication and transportation that they can't get over their malfeasant, and Congress refuses to actually, do it themselves. But either way, that doesn't matter. It's not being done and it's been going on for three years. So, by a mile they are in the right. Now how does this work? So here's my concern we can't be like Leon Lett, you know, in the 93 Super Bowl and dance before the ball is in the end zone. You gotta you know, you gotta make sure you get it in the end zone.

Daniel Horowitz: 16:33

And the deal is, it's very good, he's headed in the right direction. He's saying one needs to be said, but, as of now, he has not told the court to pound sand technically. Now, not that he had to, but, for example, what happened was the Fifth Circuit said that the DHS Border Patrol cannot cut Texas' razor wire, went to the Supreme Court. Amy Barrett joined the Liberals and reversed that. Didn't give an opinion but reversed that, meaning if the feds want to cut it, they can cut it. Now the feds haven't physically tried to do it yet, so the rubber has-.

Rick Green: 17:12

By the way, Daniel, just if we could dive into that for just a second, the case is really about property damage. It's not even a- they're not arguing all the constitutional issues and things you and I are talking about right now. It's literally can they cut our wire? And if they do, what can we do about it? The Fifth Circuit basically gave an injunction. They haven't even decided the whole case.

Rick Green: 17:33

The District Court found that everything Texas said was true, said you're right, you're right, you're right, but sovereign immunity for the feds. And so they went to the Fifth Circuit and said do they really have sovereign immunity? The Fifth Circuit said you're right, you're right, you're right. Everything you're saying that the feds are doing, you're right about that and they don't have sovereign immunity. We think that you'll be found ultimately to win that case of sovereign immunity. And so therefore, we're gonna do an injunction and tell the feds they can't cut the wire while we wait for the appeal to come to us at the Fifth Circuit, and that's supposed to happen on February 7th.

Rick Green: 18:05

And then so, even with only two weeks left of that, or three weeks left of that, the federal government went to the Supreme Court and said please, please, let us cut the wire. We need to go stop the illegals from invading. No, we need to go help them invade. And so the five women on the court you know four actual women and then Roberts, acting emotional like a woman, decided to not grant the injunction. The other four said we would have allowed the injunction to stay. Anyway, all that just so people understand. The case itself is really a nuanced, almost property destruction case, but it's gonna turn into the constitutional question of who gets to decide.

Daniel Horowitz: 18:46

Right now everyone's like oh my gosh, we finally did it, we finally ignored the Supreme Court ruling. We're setting it up- here's where the rubber meets the road, because all these governors are putting out statements of support. Now, if you look carefully, they're supporting the policy of Texas, picking up the slack where the Biden administration is ignoring the border or actually facilitating the invasion. But it's only Governor DeSantis that put out a message that undergirds the case, for if the Supreme Court does go and impose some sort of supremacist argument, that Texas would be in its right to say we wouldn't have joined the union had that happened. He put out a video. So there is a little difference.

Rick Green: 19:33

I love that too, man. He literally made the argument and this puts it in context for people. Do you really think that the Constitution would have been ratified in 1787. They're leaving an article of confederation, loosely knit together nations, very little power for the feds. Do you really think they would have agreed to the change to at the time, just these small and enumerated 15 powers for the federal government? Would they have even agreed to that if they thought they were saying we can't defend our borders, we can't defend our? No way, and there's no way. Texas would have come into the union in 1845 and said we wanna be part of a nation where we're gonna give up the ability to defend our borders no way. And for Ron DeSantis to raise that and go ahead and take the argument there, I agree with you. That was brilliant, wise and that's the real debate that's gonna ultimately need to take place.

Daniel Horowitz: 20:22

So what would happen is, ultimately, if the rubber meets the road, it would mean that they come in and say border patrol, that is all right, we're gonna cut the razor wire. Now there's two ways this could go down. They could have a physical altercation, which I just don't see that happening. More likely, they would go back to the Supreme Court and say, hey, they're not letting us cut it, and then you would have to seek some sort of writ of mandamus or they would have a contempt of court order. First they would have to issue an order and t hen Greg Abbott would say no, we have the right to secure a border, you're undermining it. And then you would have a contempt order which, again, this is where we come into neither force nor will. Now actually the executive branch is the force, so they're already trying to do it. But then that gets into the second layer. Okay, that's the executive branch of the federal government sided with the judicial branch of the federal government. But now you have the executive and legislative branch of the Texas government saying no.

Daniel Horowitz: 21:31

And you know, ultimately, what our founders envisioned is and this is what I've been preaching for years is constitutional decompartmentalism rather than judicial supremacism, meaning ultimately the constitution supreme. There's not one branch that supreme fed or state or judicial. Within the feds, it's the constitution. Now, for the first good chunk of our history, we disagreed mainly over slavery and a few other issues. Okay, that's why we had the judicial supremacy debate between Douglas and Lincoln over Dred Scott. But then we reached an era now where we can't agree on what's a citizen, what's a border, what's a marriage, what's a gender. I mean, everything the left wants to do is A demonic and B it's in the constitution. So then now we have a big problem that this old debate over who has the final say now it is much more relevant, and that's really where what I think is important.

Daniel Horowitz: 22:34

Like you said, technically this case is over a sovereign immunity, property rights sort of case. But what Abbott is setting up, if he sticks with it, is a broader argument that we're gonna need, because it's not just that eagle pass razor wire. Ultimately, we have let in, just under the Biden invasion, about eight million illegals. The brain cannot fully comprehend the effects on our society. We see it in places like Colony Ridge in Texas, but there's likely a lot more of them where they're colonizing areas, school districts, going downhill. I mean, we have not yet fully actualized the effects on the interior of the United States, and it's not just in the deep blue areas of New York and Chicago, it's all over the place. And, by the way, that's just the last few years. That's built on top of the waves under Obama and, yes, the 2018, 2019 wave under Trump that, frankly, only stopped because of COVID and Ken Cuccinelli, but other than that, that thing was going

Rick Green: 23:39

They were still coming, right? I t got a little, it was better than it is now, but it was still happening hundreds of thousands, and that is an invasion.

Daniel Horowitz: 23:50

That was an invasion and that was mainly family units and they're here to stay. Most of them were not sent back.

Rick Green: 23:56

And now you've got majority military age men when you watch what's coming across it. China, Russia

Daniel Horowitz: 24:04

We have a situation here, we could shut off the, let's say, the Biden administration became turned around and they're like we're not letting anyone over. You could stop the flow completely tomorrow and we're done as a society if we don't at least go back to kind of the last five years worth of the flow. So we have about I want to say about five to 6,000 ICE, ERO, enforcement and removal operators that actually do deportations. That's one fourth the size of NYPD. The only way you're going to get this done is if states assume the role of immigration enforcement.

Daniel Horowitz: 24:45

That means you know, bye, bye to Plylar Vito, this notion that they have a right to K-12 education, that all Benes, all work. You know and you got to mean it. And yeah, you'll have some sort of labor disruption, but we either have a civilization or we don't. And then states do need to deport because the bottom line is the Biden administration is never going to do that. I'm not going to tick off some of your listeners, but in terms of the likelihood of Republicans of Trump beating Biden, I mean it's possible, but you can't count on that happening. Okay?

Rick Green: 25:20

And even then, right, is actual deportation going to happen? You know, I just don't see it. States are going to have to do it.

Daniel Horowitz: 25:28

What needs to happen is, ultimately, it will dissuade them from coming, or they'll pile up in the blue states and that's just how it is. But what are you going to do? But in the red states, we need to keep them out. So this is the important thing about his argument, because that is an immigration argument, an immigration enforcement argument, and we need to slay the beast of things like Plylar Vido, things like US v. Arizona, this notion that somehow there is something in federal law that preempts states from enforcing immigration law, when obviously it's not true.

Rick Green: 26:03

All right, folks got to interrupt again. We're out of time. We have an entire interview available at patriotacademy. tv and then we'll dive into this a little bit more, because we've got Foundations of Freedom Thursday coming up this week and I'm sure we're going to get some constitutional questions about what's going on at the border, what can we do, what can we not do, that sort of thing. So we'll probably hit that again on Thursday. And then, of course, you don't want to miss Friday Good news Friday. With all that's going on in the country, you want to hear some good news. I know you do. I want to and looking forward to whatever David and Tim have gathered for us for this Friday as well. So stay with us every day this wee k. You're listening to The Wall Builder Show. I'm Rick Green, normally here with David and Tim Barton, and they will be with me tomorrow. Thanks for listening to The Wall Builder Show.