By David Zsutty
Originally published on Counter Currents on February 2, 2024
The showdown between Texas and the federal government over border security highlights another equally nebulous border: the border between federal and state power. While the latest ruling on the matter was not a final decision, the invasion will not stop in the meantime for legal niceties.
The crux of the federal argument in the recent case is that immigration is a federal matter. But the US Constitution does not explicitly grant the federal government power over immigration. The courts, for whatever their opinion is worth, have held that immigration is a federal matter because it is heavily implied. First, through implication from Congress’s power over naturalization and foreign commerce and the President’s power over foreign affairs. Second, through implication because the US government is a sovereign power, and controlling immigration is what sovereign nations do—in other words, “duh.”
This generally makes sense. In an ideal world, the federal government ought to control immigration and not the states, if for no other reason than efficiency and uniformity. But we live in the real world, in a vast, decaying multiracial empire, and in the midst of the great stream of becoming called history which is wholly indifferent to theory—including legalism. The existence of our people is non-negotiable. It is not contingent upon anything, let alone the interpretation of some scrap of paper from the late eighteenth century.
But it is also an undeniable political reality that legitimacy matters. Legitimacy from law bolsters the will to power of our people, while sometimes undermining the will to power of our enemies, or at least their rank-and-file base. Legalism, for better or more likely for worse, is baked into the genetics and culture of the American people from our Anglo-Saxon heritage.
Therefore, while caring about legal arguments in regard to blood and soil is objectively absurd, crafting strong legal arguments is subjectively not just a sound, but a necessary, strategy.
Thankfully, there are a number of strong legal arguments for why Texas, and the states in general, are legally in the right here.
First, if the federal power over immigration is implied by the Constitution, then it naturally follows that other things are also implied. I would argue that the federal power over immigration comes with an implied duty of good faith. Federal power over immigration never encompassed the power to mismanage immigration, let alone intentionally so. There is a zone of ambiguity, where what one might call mismanagement another may call mere disagreement. But once federal troops are cutting Texas’s barbed wire, we have passed beyond ambiguity because the intent to sabotage immigration policy is clear to all but the most deranged or bad faith of liberals. This is shown by how despite the partisan political climate, 69% of likely US voters still support Texas erecting its own barriers.
It is common sense that the power to do a thing does not necessarily encompass the power to do it poorly, maliciously, to intentionally sabotage it, or not do it at all. This was the reasoning of the seminal case of Wood v. Lucy, Lady Duff-Gordon. In that case, the defendant, a rich fashion designer, claimed that a contract was illusory because the plaintiff was not explicitly bound to do anything. Judge Cardozo reasoned that the agreement in that case had an “implication of a promise” for the Plaintiff to do his job, and thus the agreement was a contract and could be sued on. When we look past the fancy 1917 verbiage, based Cardozo’s reasoning comes down to simple “duh” and a refutation of the old, autistically rigid English interpretation of contracts. (“The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal. It takes a broader view to-day. A promise may be lacking, and yet the whole writing may be ‘instinct with an obligation,’ imperfectly expressed.” [citations to other cases omitted])
If the federal power over immigration stems from implication, it should come with an implied duty of good faith.
Yes, this is a novel interpretation of law, and I am applying a principle from contract law to constitutional law. But every legal doctrine has its first case before the august dignity of stare decisis is deservingly or undeservingly cast over it. And an implied duty of good faith at least exists in another realm of law. The legal doctrine of “public accommodations” which was used to eviscerate freedom of association, at least for whites, was spun out of the ether during the Civil Rights era.
Furthermore, it makes sense to draw from contract law because even though the notion that the basis of government is a social contract is rather silly as discussed here, social contract theory can still serve as a useful fiction for examining the reciprocal rights and duties of the national and state governments and the citizenry.
This flows into the second argument, which is that the federal government has an affirmative duty to protect the states from invasion. This is what Governor Abbott argued in an official statement from January 24, 2024, posted on X in which he stated that Article IV, Section 4 promises that the government “shall protect each [state] against invasion.” People love to talk endlessly about their rights, but they tend to recoil at the thought of any corresponding duties. Because the federal government is in breach of its duties, Governor Abbott drew upon Justice Scalia’s dissenting opinion in Arizona v United States (2012) to argue that “the States’ sovereign interest in protecting their borders” from Article I, Section 10 had activated.
The Biden regime would of course argue that there is no invasion because uniformed troops are not crossing the border with a formal declaration of war. But we are not in the halcyon days of 1789. Just as the public square has changed and is more online than offline now, war in the grim darkness of the twenty first century has also changed. Invasions are more likely to be undeclared and carried out by waves of mass migration, wielding guilt and slave morality as their weapons instead of rifles.
Mass migration is just one way in which war in the age of Aquarius will be increasingly non-kinetic, and will be waged increasingly by law, economics, diplomacy, technology, information, and propaganda. Despite their brilliance, the Founders could have never envisioned our reality. Adhering to the rigid, outdated definition of war is suicidal. China has been advancing and the US declining in large part because China adheres to an accurate conception of modern warfare as outlined in Unrestricted Warfare instead of outdated theories and doctrines. Biden retaliating against Texas by pausing regulatory approval of new liquefied natural gas export terminals is an example of how the US is actually in the midst of a Cold Civil War.
In The Lightning and the Sun, Savitri Devi likewise argues that all force, not just physical force, is violence. She even calls Gandhi one of the most violent men to have ever lived because of his effective use of moral violence to drive the British out from India. Savitri Devi argued that moral violence might seem more noble, but that it is actually less noble than traditional violence because it deceitfully tricks people into thinking that it is not violence. Staged photo ops of crying children in barbed wire to guilt trip America into accepting infinity migrants who will bring crime, poverty, and violence with them is just as ultra-violent as saturation bombing. The ruins of Los Angeles testify that the end result is just as devastating.
A third argument is that the federal government does not have a monopoly on immigration policy because of the state’s police power. Police power allows states to make laws for health, safety, morals, and general welfare of their citizens. Immigration would not seem to fall under the states’ police power if we take a narrow view of immigration. But in Adios America, Ann Coulter with more than ample citations lays out the true cost of immigration in regard to safety, crime, welfare and other public services, tax revenue, native birth rates, and quality of life, all of which clearly affect public health, safety, morals and the general welfare. This is further buttressed by how Governor Gordon of Wyoming declared “Wyoming stands in solidarity with Governor Abbott and the State of Texas in utilizing every tool and strategy to secure the border and protect American citizens. We are all border states now.” Immigration affects the health, safety, morals, and general welfare even of citizens who live far away from the border. As such, the federal government does not have a complete monopoly over immigration policy.
Texas clearly has a legal right to defend its borders, as do all states. Leaders who defy the federal government can do so confidently knowing that they can present sound legal arguments to garner the support of their people, regardless of whether the subversive courts agree or not.
This whole debacle illustrates another point though, which is the necessity for a National Divorce. That there is any disagreement at all about the fact that we are being invaded shows that we are already living in alternate realities. We can’t live with people who disagree with us on something as fundamental as what constitutes an invasion. A National Divorce would also afford the successor states of the US an opportunity to revise their constitutions to incorporate lessons learned, accurately reflect our historical reality, clarify ambiguity, and to confront the challenges of the current century.
 https://www.casebriefs.com/blog/law/contracts/contracts-keyed-to-farnsworth/bases-for-enforcing-promises/wood-v-lucy-lady-duff-gordon/ see also https://www.nycourts.gov/reporter/archives/wood_lucy.htm
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