On January 22^nd, the Supreme Court of the United States, by a 5-4 vote and while acting on an emergency petition by the Biden administration, decided that the State of Texas may no longer use razor wire to deter immigrants from crossing the banks of the Rio Grande along their well-traveled northern routes. Although this ruling from the Supremes was unaccompanied by any explanation, it was consistent with a recent finding by Federal District Judge David Ezra. Back in September, with the immigrant flood at its height, Judge Ezra criticized Texas Governor Greg Abbott for installing a thousand-foot, floating river-barrier opposite the border town of Eagle Pass; even worse, Governor Abbott acted without obtaining Federal permission! “Unfortunately for Texas, permission is exactly what federal law requires before installing obstructions in the nation’s navigable waters." the judge added in his final harrumph. https://www.texastribune.org/2023/09/06/texas-border-floating-barrier-buoys-federal-judge-ruling/

Having spent a professional lifetime defending the very Constitution honored these days mostly in the breach, may I offer a word of advice to those black-robed military illiterates temporarily occupying the benches of the nation’s highest courts? Since Judge Davis’ court is located in Austin, he is closest to the ongoing scourge known as our southern border. Although estimates vary greatly, our Border Patrol believes something like 6.3 million people illegally crossed into Texas over the last three years, not including got-aways, human traffickers and potential terrorists who wish to remain anonymous. 

It is doubtful that Judge Davis has ever escaped Austin’s tony environs long enough to confer with the ranchers, farmers and sheriffs doggedly trying to cope with these human waves of misery. You rarely see this grim news covered by the major networks but practically anyone from The Valley could have told the judge about those 28,000 Chinese immigrants – mostly male and of military age – who suddenly appeared on our doorsteps. Do you think those extraordinary numbers might somehow be related to our current tensions with the PRC? None of your law books likely even mentioned the Chinese way of war, their mastery of striking ruthlessly at lucrative targets inexplicably left unguarded. You have probably never heard of Mao or Sun Tzu but instead obsessed over obtaining Federal permission slips before bolstering our defenses?

Apart from such local lunacies, the idiocy that today passes for American jurisprudence is best displayed inside the lawless environs of the nation’s capital, currently obsessed by the Anti-Trump Lawfare Campaign. But have you noticed that every indictment, each new media-manipulated specification, seems only to achieve a strange harmonic that somehow spawns new sympathy for Mr. Trump? In a weird way, the border debacle and the lawfare campaign seem to be merging, the scourge of fentanyl punctuating the desperation ordinary Americans feel for political and legal systems that no longer reflect their needs. Did the Biden White House ever imagine that their well-orchestrated campaign to saddle Donald Trump with 91 Federal indictments would only underline his point about the Swamp striking back at him and every ordinary American?

Upon hearing about the Supreme Court’s decision on razor-wire, my first reaction was to deplore the widening distance between our military and the society it defends. To the uninitiated, razor-wire seems too much a weapon of war to have any conceivable role in border control: If, however, you are not dealing with docile waves of immigrants but with an invasion, your perspective changes instantly. Wonder of wonders, our Constitution also recognizes this critical distinction, Article 4, Section 4 declaring, “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion…” By any reasonable calculus, the United States does not face an immigration problem but a foreign invasion that means to occupy our country and fundamentally transform our society.  

To close that border and to reverse the priorities of the last three years means recognizing that half-measures and bureaucratic gamesmanship will no longer suffice, even if we can somehow avoid a terrorist attack to penalize our negligence. As a separate and co-equal branch of government, the Supreme Court ironically finds itself able to do the right thing. By reversing its recent ruling while declaring that the nation faces an invasion under the classic definition of Article 4, the Court can send a historic signal that reinforcing our borders has now become a matter of national survival.

Colonel (Ret.) Ken Allard is a former West Point faculty member, Dean of the National War College and NBC News military analyst.