A Bold Move on Border Security and Subsequent Legal Challenges

Rick Green: 0:07

Welcome to the Intersection of Faith and the Culture. This is The WallBuilders Show. I'm Rick Green here with David and Tim Barton. You can find out more about us and the program and you can also listen to some of the past programs over the last few months right there at wallbuilderslive. com. That's our website for the radio program. You can get a list of our stations. A lot of other great information there, and then over at wallbuilders. com you can get some great tools for your family, whether it's DVDs or watching videos online or getting some of the books or just reading some of the articles right there on the website. All of it is designed to equip and inspire you to be a part of the solution, to be a good citizen and live out your freedom in a way that will preserve it for future generations.

Rick Green: 0:45

We've got your questions to get to today. Thanks for sending those in. It is Foundations of Freedom Thursday. Alright, guys, jump into those questions and folks, if you haven't sent yours in and you've got a question about the Constitution or history or application of biblical worldview to some of the issues going on out there, whatever you got, send it in to us. We'd love to air your question and talk about it. So radio@ wallbuilders. com. That's the email. Radio@ wallbuilders. com Nothing off the table. We love hearing from you, so send them in.

Rick Green: 1:11

This one comes from David, not David Barton, here on the program. Another David, he said, howdy David, Rick and Tim have questions related to Texas Governor Abbott's battle with President Biden over the continued influx of illegal immigrants coming across the border. Number one are Governor Abbott's actions to use Texas DPS and Texas National Guard to secure the border and protect the state constitutional? Two if so, what was the basis for the US Supreme Court decision allowing the Department of Homeland Security to remove border security provisions placed by Texas agencies? And he's talking about, you know, cutting the razor wire, thereby countering the actions of the Texas agencies. And three I've heard that some Texas Democrat members of Congress are calling for President Biden to take control of the Texas National Guard. Does the Constitution allow for President to take command of a state's National Guard for domestic duties within the state without some declaration of war or insurrection?

Rick Green: 2:00

Thanks for all you do to educate and inform people about the truth. God bless you. Alri ght, that's David at Out in League City, Texas. David, thanks for sending that in. We're going to need about five programs to answer all three of these questions. So, fellas, our schedule is full for the next five Thursdays. What is it they say when you're, when somebody's wanting to in Top Gun, when he wanted to buzz the tower and he says something is full? Well, I can't remember the line now. The pattern is full. That's it, the pattern is full. Thank you, David, for filling the pattern. All right, guys, let's take the first one. Our governor have its actions, using our DPS and National Guard to secure the border. Is that constitutional?

David Barton: 2:35

That's going to be one of the things that will be a huge decision in the coming months, and that's going to be,

David Barton: 2:40

are we going to use the progressive interpretation of the Constitution or do we go back to original intent? Because original intent the founding fathers dealt with immigration extensively back in their day. We had so many people coming to America from all across the world for the same kind of reasons they wanted freedom, they wanted to be here, they wanted out from under tyranny of their own government, and so they were coming here and the founding fathers had extensive, extensive discussions immigration, including when they were writing the Constitution and putting clauses in there about immigration. As a matter of fact, the guys who signed the Constitution nearly one-fifth of them were themselves immigrants. They were not even born in America, so they as immigrant and they probably took the strongest position on how important immigration is and how important you control the borders and how important is that you have high standards for those who are coming in. The immigrants themselves who were signers of the Constitution probably raised the bar much higher than those who had lived here, but nonetheless, all that to say that hey, David, think about it.

Rick Green: 3:38

That's the Hispanic community in America that came here illegally. They're the ones standing up the most to say we don't want illegal immigration, we want it to be legal. So it's very similar, right.

David Barton: 3:49

It is exactly similar. And those who came here illegally and went through the process. They now understand why that's so important. And the founding fathers talked about it. They said you know, we came here thinking we were coming to another nation and we would have voted and acted as if we'd been in our home nation, which would have turned America into our home nation. But because it required-

David Barton: 4:10

Well, some of those at the Constitutional Convention said you ought to wait 14 years before you allow an immigrant to vote, because it'll take about that long to learn how to think like an American and understand American institutions. Some said nine years. They settled basically on five years. But they said if you come from a nation, it'll take you five years to learn how different America is, how different philosophy is, how different the government is, how it serves the people, and not vice versa. You need five years of inculcation of the American culture, otherwise you'll destroy it by voting the way you voted in Mexico or Brazil or Russia or China or wherever. So that's why they were so adamant on that and that timeframe. Now, who enforces that? Back in the founding era, this was a shared responsibility. Thomas Jefferson, I think it was 1803, said look, the real purpose of the federal government with immigration is to make sure that everyone who arrives on the shore is healthy, you don't have tuberculosis or some big disease. But then it's up to the states on what you do with immigration.

Tim Barton: 5:05

Hey, wait a second, wasn't that what they were doing at Ellis Island back then? I mean, George Washington established Ellis Island, Alexander Hamilton came right through there, except no, Ellis Island was the 1890s.

Rick Green: 5:18

And this is one of the-. Just a few years later, right, just a couple years off here.

Tim Barton: 5:21

This is one of the ones we have pointed out as one of the very easy things that, if you just understood the basic concept, it shoots so many holes in this idea that only the federal government can, does or should. There was no like this unilateral idea of federal immigration. Where did that happen? Because, again, Ellis Island was the 1890s. So who was doing immigration before that? And to make your point, this is when very clearly it goes back it was the States, and I'm trying to give this as a really silly but the most simplified example possible. The federal government was not the ones doing this, they were working with the States. The States were the ones doing the operation of this. The federal government was working with the States. The federal government was not usurping the States. The States were the ones processing this and they were working with the federal government and vice versa as this happened.

David Barton: 6:17

To go to your point, Tim, 1892 when Ellis Island open when George Washington did the ribbon cutting there with Thomas Jefferson at Ellis Island and they had the Statue of Liberty there when they erected the Statue of Liberty with George and John and all the yeah right, 1892 is when Ellis Island opens and that was based on the fact that the year before Congress had passed really its first national immigration law, first really federal law on immigration that was purely federal, and so it was the year before that Congress started passing federal immigration laws in that sense. And that goes back to two Supreme Court cases, 1875, 1876, where the Supreme Court said, hey, we think that immigration probably should be a federal issue, not a state issue. And so, starting 1875, 1876, you have I think you could argue it's an activist Supreme Court, because they're overturning what previous Supreme Courts had done, because they had a different view. And at that time you had all the Irish immigration, you had the Catholic immigration, Chinese immigration, you had all this immigration floods coming in and they're saying, just let the federal government take care of all this. And so that's 1892 when Ellis Island opens. That's the first federal immigration facility.

David Barton: 7:27

So what did you do for the first 100 years? Well, you let the states be involved with it. So it really was a shared responsibility and to that extent what Abbott did is consistent with what the founding fathers would have been doing back in their day. It's not consistent with what would have been in 1892. So, to answer David's question on whether it was right for Abbott to use the Texas forces to do this, it depends on whether you're interpreting it under original intent for the first century or under the courts reinterpretation of the last century. But under original intent, this is a shared responsibility.

Tim Barton: 8:03

Well, and Dad, even along those lines, this is one of the very unique times when the federal government is not upholding the actual laws of the nation, intentionally, and then they're preventing states from upholding federal immigration laws that the federal government is abandoning. So, generally speaking, that this never would have been considered unconstitutional because the states would have been working with the federal government to uphold the same standard, enforcing the same laws. And it's this really kind of interesting quandary when the federal government is refusing to uphold the actual laws of the nation and then a state decides to step in to uphold a moral and ethical standard, and really even the legal standard that the federal government has optionally, arbitrarily, chosen not to do, and then the federal government is coming after the state for following the laws of the nation. It's so ridiculous, but it's, I think, one of the very few times that we can look at any kind of immigration situation where the federal government and the states were diametrically opposed in the outcome of the application of following the law.

Rick Green: 9:17

Well, you know, what's interesting, guys, is the intellectual dishonesty which is not shocking, of course, but the intellectual dishonesty of the Biden administration and the arguments they made to the court to get this decision where they can now go cut the razor wire. They literally argue I just gotta read this to you. They literally argue that they're enforcing the statutes right, that they're there for a purpose. Now they only use the words like if I remember right, it was interrogate, process, possibly apprehend. The statute actually says that the reason they have the ability to come within 25 miles of the border and enter these areas is "for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States. And they're standing before the court saying you know what? We need to move those evil Texans out of the way and cut the razor wire out of the way so that we can do our job.

Rick Green: 10:11

And then, instead of preventing the illegal entry of aliens into the United States, the whole case is around this September 20th day where they literally threw a rope, they literally put a ladder rope down and helped the illegal aliens, cut the razor wire through the rope down, helped 4,555 illegal aliens that day.

Rick Green: 10:31

And then they did not apprehend them, they did not interrogate them, they did not detain them or any of those things. They literally said hey, walk that way, it's gonna be a mile. And then you know, would you please stop at the processing center there and guess what? Half about half, little more than half showed up for processing a mile down the road. Where'd the rest go? We have no idea. So my whole point is they're literally standing in front of the court saying the Texans are not letting us fulfill the law, and then they're turning around and on camera not fulfilling the law. They're doing the opposite of fulfilling the law and that's why Texas, I think, has such a good argument for saying nope, you do not have the right to cut our razor wire and go in there and aid in a bet the breaking of the law.

David Barton: 11:14

And going with that, I'll remind people that when Governor Abbott took his oath of office, it was not an oath just to uphold the state laws of Texas and the Constitution of Texas. It was the laws and the Constitution of the federal government in the United States. His oath of office was to uphold all those laws state and federal and so if the government's not going to uphold his federal laws, he's simply doing what he took an oath to do, and that was uphold federal laws. But I've heard a whole lot of discussion on this and I think most people have missed a really key point here.

David Barton: 11:42

The Supreme Court did not order that Abbott has to take that razor wire down and say razor wire is unconstitutional. They did not. They had a 5-4 decision and there is no written explanation by any justice. It's just a 5-4 procedural decision that said, hey, we're going to vacate what the Fifth Circuit did. We're going to let that trial go all the way through. We'll weigh in on this later. So all we're doing is we're simply saying the Fifth Circuit, we're going to vacate it and they need to go through with the trial. So the Supreme Court did not do anything in the sense of saying, hey, you have to tear down that razor wire that Texas illegally put up. That's not it. Media's been covering it wrong. So all it is is an unsigned opinion 5-4, that they're vacating the Fifth Circuit decision and the Fifth Circuit is over Texas, Louisiana and Mississippi. So that's the federal court that said, hey, there's going to be a trial on this, and they simply vacated the early part of that decision. There's no decision about the Supreme Court on this yet at all.

Tim Barton: 12:41

Well, the part they vacated was that Biden and his team could not cut down a razor wire. So, vacating, it then says, okay, Biden and his team can cut down a razor wire. What it doesn't mean and what it did not say is that Abbott and Texas can't put up razor wire. What's super interesting is now you have this weird kind of dichotomy of, well, somebody can put it up and somebody can take it down, and neither one has been declared the winner and neither one has been declared right or wrong. And so, even as Biden has been saying, Texas, get out of the way and whatever kind of threat and force they're going to try to use and leverage and we're seeing that unfold even this week. We're seeing that happen where Abbott doesn't want to back down, Biden doesn't want to back down. But this is where even seeing how this plays out in the lower courts and I'm sure it's going to be appealed, no matter who does what going up and now you have so many states that are siding with Texas on this and are encouraging Texas on this.

Tim Barton: 13:40

This is something that is also going to be interesting to see how it plays out in the polls. It's something that will be interesting to see what Trump does, which guys, on the break we were talking about, or I guess, before we got started, even kind of alluding to some of this, it'll be interesting if this is something that positions Governor Abbott. Maybe that Trump says you know a guy that's willing to fight this fight maybe should be a vice president. We would have other reasons that you know, maybe we're not a fan of Abbott in some areas because what happened early on in COVID. Maybe he's learned his lesson, I'm not sure. Nonetheless, it'll be very interesting to see how this plays out in the landscape of the presidential election and other things going forward.

Rick Green: 14:23

Yeah, you know you talked about the other states supporting, I think, one of my favorite quotes. Well, of course, DeSantis had a great quote where he was saying do you really think the founding fathers would have ratified the Constitution if it meant that they could not protect their own borders? And then, do you really think Texas would have joined the union if it meant they can't protect their own borders? I thought that was great. And then there was this really fun when Christy Noem said if Texas needs more, she's a governor of South Dakota there. She said if Texas needs more razor wire, I'll load it up in my pickup truck and bring it to you. I thought that was great, too. All right, guys, quick break. We got the last part of David's question. When we come back has to do with essentially federalizing the Texas National Guard. Stay with us folks. You're listening to The Wall Builders Show.

Tim Barton: 15:11

Hi friends! This is Tim Barton of Wall Builders. This is a 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, 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: 15:39

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 providential view of American and Christian history. This is available at wallbuilders. com. This is www. wallbuilders. com.

Rick Green: 16:11

We're back here on WallBuilders. Thanks for staying with us and we're in the middle of a three-part question from David in League City. David, thanks for the question. We sort of covered the whole, can Governor Abbott use the Texas National Guard and the DPS to protect the border? And we didn't really get into the Constitutional provisions,

Rick Green: 16:31

but of course Governor Abbott is now stating exactly what we've said for years Article IV, section IV it's the federal government's responsibility to repel an invasion and protect against an invasion. It's the guarantee clause. And then Article I, section X if the federal government's not doing its job and there's imminent danger, can do what it needs to do, and I think it's still going to have to do more. You've got to take those folks and place them back across the border. But this is still a big step. And even the language in his statement last week was really strong, stronger than he's ever said. He literally said that the federal government broke the compact with the states.

Rick Green: 17:05

So that's the first two and kind, of the battle, over this decision. By the way, the court case is all about property and whether or not you can destroy the chattel of the state, whether or not the feds can do that. So it's not even technically the Constitutional question of securing the border, but it's being used for that particular question. Okay, now guys, to the third question, can? So yeah, this is a great question. So what happens if President Biden says well, you're using the Texas National Guard to secure the border, I'm just going to nationalize, I'm going to call up the National Guard and then I have control! Interesting question,

David Barton: 17:40

You know, this is one of those shared responses and, by the way, David asked here. He said I've heard that some Texas Democrat members of Congress are calling for President Biden to take control of the Texas National Guard. I would say that if you eliminate those last five words, he's got it really right. If you said I've heard that some Democrat, Texas Democrat members of Congress are calling for President Biden to take control, that's it. They want to take control of everything. They want to take control of climate, they want to take control of everything.

David Barton: 18:07

So it doesn't have much to do with the Texas National Guard. That's just the excuse. But going back to that, the Texas National Guard, people need to understand that the guard can be called up by the President, but you have to have a declaration of some kind of emergency, so you can call them up for, hurricane Katrina, we need help with law and order and we need help with rescues and the floods and we need to keep looters out of the stores. Whatever, it doesn't have to be an act of war or insurrection, just some kind of national emergency where you've got to have some kind of help. And that's been done a number of times.

Rick Green: 18:40

You know, David, this is a great point you're making because, hey, the border's fine, there's no emergency down there, it's all secure,

David Barton: 18:47

That's

Rick Green: 18:49

Yeah, how does he say, on one hand, hey, there's an emergency, I got to call the Texas National Guard, and then, on the other hand, you just play the clips of he and Kamala saying, oh, there's no problem at the border, everything's great, Mayorkas saying everything's great at the border, it's perfectly secure. Well then, what's the emergency?

David Barton: 19:04

Yeah, and why are you calling up the Texas Guard if there is no emergency? Because you can't just take it over. Now, Texas is one of 23 states that also have organized state militias. So we have not only the Texas National Guard, we've got the Texas State Guard, but the National Guard what happens is Governor Abbott is over the National Guard. That is a Texas force. It can be called into federal service, but he's also got the Texas State Guard, which can be called in the state service.

David Barton: 19:32

23 states have that. Other states ought to develop it, by the way, if you're a state, you ought to get your own state guard. You need your own organized militias and extra forces for emergencies and whatever crisis comes along. So Abbott is still in charge of the Texas National Guard and I firmly believe that if Biden were to say, hey, I'm taking the Texas National Guard and we're going to keep Texas from tearing down razor wire, I think that Abbott would directly counterman that order and you would have a good fight in court and I think the state would win on that. I think the state would win on that particular issue because if there's not an emergency, you can't just call them up and federalize them just because you want to. This is one of those shared responsibilities that goes all the way back to the American War for Independence.

Rick Green: 20:16

I have a question for you then, and I may be wrong on this. Guys correct my memory, but when they did the whole calling up the National Guard and had all the fences and everything around the Capitol and Washington DC look like a war zone for a while there with the overreaction, didn't some governors actually call their National Guard back? So wouldn't that be kind of the same tug of war there, or give and take?

David Barton: 20:45

They did. Absolutely and it would be. And there was a number of states that said we refuse to participate in this and a number of governors called their National Guard home because that National Guard is under the control of the governor. Now you know it can't be federalized in the right situation, but that sure wasn't J6. J6 wasn't the right situation and there's no way they were going to win that in court. And so there were a number of those guards that did come home right, you're exactly right.

David Barton: 21:11

And on the other hand you did have the riots back in Little Rock in 1954 and segregation, where Eisenhower federalized the Arkansas National Guard and moved them away from enforcing segregation. They moved in the 101st Airborne to take the place of the Arkansas National Guard. So there's there's times and places where you've seen it go kind of both ways. But I don't think Biden would have a leg to stand on in a court, at least in a Constitutional court. He might in the San Francisco court, although I've got to say we've seen some really interesting rulings coming out of the Ninth Circuit in the last couple of years that really do appear that they're reading the Constitution again, which is good news as well.

Tim Barton: 21:51

We know guys, it would be interesting too, we know a lot of people in the National Guard and if they got such an order it would be quite fascinating to see if there'd be pushback. One of the things that we recognize every member supposed to be, of Congress, of public service, but certainly the military. They take an oath to uphold the Constitution, to defend against all enemies, foreign and domestic, and I think there'd be people recognizing there's an invasion. And if the president is doing things to the detriment l of America, I would be very curious what level of pushback or reticence or resistance there would be, because I suspect there would be some.

Tim Barton: 22:29

Now I think it probably would be more vocal retired people speaking out explaining that some of their friends still involved. They're not excited, they don't wanna do it. But when you talk about a really difficult position with the potential of resistance from inside your own National Guard, it certainly could be over this kind of issue and I'm not sure if Biden sees it or not, I'm not sure what people are telling him or advising him. But I know a lot of people in active military and National Guard on reserves and I mean the people I know they would certainly want to defer to obedience to the commander in chief, but they also recognize and especially after COVID, this became a much stronger reality for many of them. They also recognize that they have responsibility to not follow unconstitutional orders to a certain extent, and this certainly could be a situation that could raise some questions for many people.

David Barton: 23:30

And I think there's another factor here that is worth remembering and that is that before Abbott became governor he was the attorney general and he argued and won a number of cases at the US Supreme Court over Constitutional issues, over original intent kind of issues. And so I think he is one guy that if he felt like that he was being pushed or the president was stepping in to do something that was not within constitutional bounds, I think Abbott would mount a very aggressive resistance. Now I don't mean physical armed resistance, I mean a legal resistance in the sense of he's not gonna go along with that. So, Tim, to go to where you are, not only would there be internal pressure from the guard members, I think there would be external pressure from the governor and from the staff and from most of the Texas leaders, right down through the attorney general himself, to fight that. I think it'd be very, very difficult for Biden to be able to pull that off. So, David, great question, lots of stuff talked about, but bottom line is don't let how that decision, the Supreme Court decision of last week, is being portrayed now suggests that the Supreme Court has taken a position that what Texas is doing on the border is unconstitutional, illegal and has to stop, cause that was not the decision at all. That was not it in any way, shape, fashion or form. I think this is gonna move probably toward the right constitutional conclusion by the time this Fifth Circuit trial is over. I think you'll get a really strong constitutional decision out of the Fifth Circuit and I think the Supreme Court will probably defer to that once it's gone through the circuit. But we'll see. I don't think the Supreme Court has enough. And, by the way, Rick, you and I and Tim were talking about this earlier.

David Barton: 25:11

It appeared that two of the more conservative justices, although not the most conservative, that's Roberts and Amy Coney Barrett. It appeared that they went with the liberals on this thing, and I would say that no, it's not really going with the liberals. I think that they have a view that it's the federal government that's to be in charge of immigration, not the states. And I don't think they took a position on the razor wire. I think they took a position on no, no, no.

David Barton: 25:34

This is really more of a federal issue than a state issue, and so I think that's where they came down, not ruling at all in the merits of what was going on, of that thing. So even when you see that Roberts and Amy Coney Barrett were on the other side of the liberals, that doesn't mean that they've gone liberal. It means that there is a federalism argument that they are probably having in their mind that says, hey, the feds do have a role in this and let it work out the Fifth Circuit. So still a lot to go on this. I don't think it'll end up the way the media has been portraying this thing, and I think they've really mis-portrayed it badly over the last eight to 10 days on this thing.

Rick Green: 26:08

And with there being no opinions written and it just being a decision, there's no way for us to know. I mean, it could be as simple as them thinking you know this is too big of an issue for the injunction to stay in place. We want to wait until we see the full merits of the case. It could be as simple as that. Maybe they just wanted the injunction to go away. Again, nothing decided on the merits at this point, so it's going to be really interesting to watch. Well, David from League City, thank you for sending this in. You have the rare distinction of the entire program being devoted to your set of questions. So great job sending those in. Folks, send more to us at radio@ wallbuilderscom, and we'll hit those next week. Thanks so much for listening. You've been listening to Wall Builders.