What Now?

I sat on a flat rock, up in the Davis Mountains of West Texas, holding a microphone. The man across from me had a tendency to turn away from his interviewer and stare into the TV camera that was recording his logic. Rick McLaren’s hair was in wild disarray, his eyes frantic with urgency, and his run-on sentences an inevitable challenge for editing. I was, significantly, partially responsible for McLaren’s notoriety. When I had heard about a constitutional convention to be held in a cotton gin with the express purpose of creating a new Texas separatist movement, I figured the gathering was a great bit of Texana to make a feature story.

The narrative, however, refused to end, and became disturbingly serious. McLaren quickly accumulated followers and they took their case to the streets of Austin to march on the state capitol, a wildly counterintuitive move since they did not recognize the authority of the Texas government. An insurance salesman from Missouri, McLaren had a mind voracious for information and he had focused on the legality and constitutionality of the U.S. annexation of Texas and the affirmation of statehood in 1845. On that warm April day in 1997 as I conducted the interview, McLaren was making his arguments for reasserting Texas independence to our TV camera outside his rundown trailer and clapboard shack that served as the “president’s house.”

“You have to understand,” he said, damn near breathlessly, “We never really became a state. The people of Texas did not agree to join the union in 1845 or to rejoin it after the Civil War. Both were unilateral actions by the federal government. The vote was 166-8 at a special meeting on secession, but after the war was over there was never any legal involvement of Texans to re-enter the U.S. Nobody voted. We are still an independent state, but I argue we have reverted to being a republic, which is how we started.”

Almost every word from his mouth was inaccurate but I did not feel like arguing. My job in that moment was to let him spew his unfounded rhetoric. Besides, when I glanced off to a ridge line several hundred feet above where we were recording the interview, I saw men in fatigues walking patrols along some imagined perimeter, looking down on us, and shouldering high-powered rifles. Angering McLaren to the point of animation might have been dangerous, which turned out to be the case. The fire burning in his mind led to self-immolation when his Republic of Texas movement took over the Davis Mountains Resort settlement less than a month later and began an armed standoff with Texas State Troopers and Jeff Davis County law enforcement.

McLaren, of course, lost his battle, even after putting out a short wave radio broadcast shouting, “May Day, May Day, this is a plea to all countries of the world to come to the assistance of the Republic of Texas with arms to defend our freedom.” Eventually, McLaren was convicted of various charges at his trial in Alpine, Texas, and sentenced to 99 years in a federal prison. Two of his consorts also got long terms behind bars and one, who escaped temporarily into the surrounding hills, was later killed in a firefight with law enforcement. Unfortunately, the predictable outcome of a Texas separatist movement did not drive a stake through the heart of the concept and it is making a political comeback, in part, by feeding off the conflict between state government and federal authority confrontations on the border.

The new movement calls itself “Texit,” mimicking the British political campaign that led to exiting the European Union, except this one is even more disconnected from reality. Leadership of the Texas National Movement suffers from an inability to read constitutional law and Supreme Court precedents regarding leaving the union. The group tried to get the secession question on the Texas Republican Party’s primary ballot for this spring but was told too many of their signatures lacked complete information and their idea was rejected. They are not, however, relenting, and every time the Biden Administration wins a legal fight over border protection, a few more uninformed Texans start talking secession.

Quick points of clarification, though. Texas did vote to become part of the union, and when it rejoined after the Civil War, an 1868 case titled Texas v. White held that inclusion in the United States was eternal and that there was no legal mechanism for leaving. In a 1901 Supreme Court opinion, too, the high court also found that the annexation of Texas into the U.S. in 1845 was absolute and cannot be argued since Texans voted to join. Finally, in the century and a half that has rolled past since the Civil War, Texas has failed to legally challenge its statehood and that very acquiescence proves there are no legal defects in the U.S. claims of sovereignty. Explaining this to adults in 2024 ought not be required, but, hell, the Texas GOP at its 2022 convention in Houston approved calls for the state to “reassert its independent status.”

The only chance Texas might have of seceding would be through the use of military violence and that did not seem like such a remote proposition until yesterday when the Texas Military Department marched troops along the border near Eagle Pass on the Rio Grande. Just as the Supreme Court ordered Texas to remove razor wire from the north bank of the big river, the Texas governor had his troops defy the high court by adding more wire and barriers. Nothing demonstrates Greg Abbott’s hypocrisies regarding the law than ignoring a Supreme Court ruling he does not like on the border while enforcing regulations against abortion made possible in Texas by the same court. Like most Trump conservatives, Abbott believes in the rule of law only when those rules comport with his political beliefs.

Both Abbott and the Texas Attorney General Ken Paxton claim this fight is not over, though there is no higher court of jurisdiction to seek remedy. The Fifth Circuit Court of Appeals in New Orleans has previously issued the temporary restraining order against the Biden administration, forcing Border Patrol to stop cutting razor wire. The injunction was to hold until the appeals court could hear full arguments, but the White House asked the Supreme Court for an opinion in the interim, and Abbott lost. AG Paxton may be foolish enough to ask the Fifth Circuit to consider full arguments but it seems a bit like a theater of foolishness since any finding would be considered moot because of the higher court’s conclusions. Even the current conservative high court recognized the federal government’s sovereignty over matters of immigration and border protection. Texas does not have, regardless of how many times Greg Abbott insists, any constitutional right to protect the border.

But what happens now? When the Border Patrol comes to exercise its federal authority to cut the razor wire to take immigrants into custody, will Texas soldiers turn their guns on fellow citizens charged with enforcing the law? There has already been confrontation at Shelby Park in Eagle Pass when Texas troops refused to allow Border Patrol agents into the park to attempt to rescue immigrants who later drowned in the Rio Grande. President Biden finds himself in a precarious position even after winning the argument before the Supreme Court. If he orders Border Patrol agents to remove all the wire, he takes further political hits for being soft on the border. There is also the possibility he might be able to call up the Texas National Guard to active duty, and give their commanders orders direct from the Commander-in-Chief.

The dynamics are clearly unfolding for an emerging constitutional crisis. The law favors the federal government’s authorization for customs and immigration matters, but how is that enforced when a state’s governor does not believe in the law and orders his fellow citizens to defy it. Can U.S. Marshals be called upon to arrest Texas National Guard officers and troops for following their orders? The Biden administration has another lawsuit in the Supreme Court, too, seeking a ruling that Abbott’s floating barriers be removed because they are violating treaties with Mexico and obstructing an international waterway. The outcome of that case seems as clear as the one Abbott just lost.

But what happens next down on the Rio Grande has some ugly possibilities.

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