Texas Ignores the Constitution and the Rule of Law

Kudos to @BlueHogReport catching this post from “Texas Patriots for Secession” earlier in the week:

He’s right on the nose. MAGA “patriots” want to have their cake and eat it, too, when it comes to the involvement of the federal government in their lives. It’s laughable; perhaps it was even meant tongue-in-cheek. But when it comes to Texas and the states supporting it in its battle against federal control of immigration policy and enforcement, there’s nothing funny going on.

Texas wants the federal government to do more to stem the flow of migrants across its border and be meaner about it. That’s hardly news, nor is it news to anyone that our immigration system is broken. Congress enacted the Immigration Reform and Control Act (also known as the Simpson-Mazzoli Act or the Reagan Amnesty) in November 1986 when Ronald Reagan was president. Almost 40 years later, and despite decades of attempts to reach a compromise that would set the stage for more recent changes to reflect current conditions, there has been no further legislation. Late last week, Speaker Mike Johnson announced that the compromise immigration bill the Senate was working on was “dead on arrival” in the House, and he would not bring it to the floor. And on Wednesday, in his first floor speech as speaker, Johnson said President Biden should use executive action to control migrants at the border. Have you ever heard of House Republicans suggesting a Democratic president should use more executive orders to direct policy? Without the slightest touch of irony, the man who shut down any legislative action intoned, “I’m here this morning to beg my colleagues to help us force the administration to take action.”

Why would the Speaker do that when immigration is one of the top Republican issues for the 2024 election cycle? When Republican Senators were hard at work on inserting their priorities into new legislation? Of course, we all know the answer: Donald Trump. Senator Kevin Cramer (R-ND) revealed the quiet part out loud when he said that a “border deal that actually reduced the flow of illegal immigration would be good for [President Biden] politically.” Senator Mitt Romney (R-UT) put it straight: “The border is a very important issue for Donald Trump. And the fact that he would communicate to Republican senators and Congress people that he doesn’t want us to solve the border problem — because he wants to blame Biden for it — is really appalling,” he told reporters.

Mehdi Hasan tweeted, “The Republicans want you to believe there is a literal invasion at our southern border, but also that it doesn’t need to be repelled or stopped … till January 2025.” Former Democratic Senator Claire McCaskill weighed in too:

In the meantime, though, while Republicans refuse to move ahead with the prospect of new legislation, Texas has stepped into the breach. Texas wants to take over the border from the federal government and implement its own policies, even when they lead to migrants dying as they attempt to cross the border. And as of late last week, approximately twenty-five other (red) states, had indicated support for some or all of what Texas was doing, even those nowhere close to the border.

Alabama was, of course, in that mix. Because that worked out so well the last time.

What's going on in Texas? The current immigration challenge by Governor Abbott is over Texas’s installation of razor wire along a 29-mile stretch of the border, preventing federal border and immigration agents from access to the border near Eagle Pass, Texas, including sites federal agents launch their patrol boats from. Bear with me on the legal quagmire that followed.

Photo from Vanity Fair

Texas sued the United States in federal district court. That happened after federal agents cut through Texas’s razor wire so they could do their jobs. Texas claimed federal border agents were “converting”—stealing—Texas’s razor wire installations and trespassing among them. In other words, Texas sued the United States for damaging its property—the razor wire.

Lawsuits take a long time to go from start to finish (as we all know at this point), so the state asked the court for an injunction to prevent the government from disturbing its razor wire barrier while the litigation was ongoing. The district court refused. On appeal to the Fifth Circuit, that ultra-conservative court, no surprise, held that the federal government had to keep its hands off of the wire except in cases of medical emergencies.

The Solicitor General asked the Supreme Court to reverse the Fifth Circuit’s decision, which they did, ruling 5-4 that the United States controls the border, and can continue accessing and patrolling the border and apprehending illegal immigrants while the litigation is underway. The Solicitor General argued that the Fifth Circuit’s ruling violated the Supremacy Clause by requiring federal law to yield to Texas law and “would leave the United States at the mercy of States that could seek to force the federal government to conform the implementation of federal immigration law to varying state-law regimes.” She also pointed out that the exception for medical emergencies was meaningless since the razor wire barriers were so extensive that it would take more time than was available in a medical emergency just to cut through them. The Supreme Court undid the injunction, leaving federal agents free to do their jobs. The merits of the case haven’t been decided yet. This is just a preliminary skirmish.

The technical issue before the Supreme Court, which they decided on January 22, 2024, was whether they should block the Fifth Circuit’s order that barred federal agents from cutting or moving Texas’s razor wire while the substantive litigation (over whether Texas was entitled to install it in the first place) was ongoing. Chief Justice Roberts and Justice Barrett sided with the progressive Justices. The Court does not have to issue an opinion explaining the reasons for the decision it makes at this stage in a case, and they did not do so here. But, like any other ruling from the Supreme Court, it has the binding force of law.

Unless you’re Texas, which doesn’t seem to see it that way. Last week, Governor Abbott said he would continue to “defend” his state’s border despite the Supreme Court order and continued to install more of the razor wire. While he’s not actually violating the order, he’s certainly not complying with the spirit of it. Texas is interfering with federal agents’ ability to continue accessing the border, which the Supreme Court has already ruled they have a right to do while the litigation moves forward.

The Department of Homeland Security had to write to Texas to demand border access. In their letter, they wrote that Texas had been denying them access since Governor Abbott seized Eagle Pass city land on January 10.

Instead of responding to the letter with assurances Texas would comply and an acknowledgment that it’s well-established under the Supremacy Clause of the Constitution that states can’t implement their own immigration laws, Texas plowed ahead. On Monday, Lieutenant Governor Dan Patrick said the state was “putting up wire … everywhere we can. We will continue. We will not stop.” He told Fox News, “If they cut it, we will replace it.” 

Our immigration system is broken—and will stay that way as long as Republicans promote its use as a political weapon. We need a foreign policy that helps stabilize Central American countries that are struggling and that reinforces the importance of protecting human rights, for instance, of women domestic abuse victims who flee for the United States under current conditions. We must respect international law on asylum and also build and communicate clear, readily understood rules for applying for citizenship that do not involve a decades-long wait that incentivizes illegal immigration. We need legislation that creates a rational system for permitting people who want to come to this country to get in line. Immigration is an economic engine that fuels our economy, with both workers and people buying goods and services. We need good federal policy that makes immigration work. But legally, the federal government sets policy, whether good or bad, that controls in this area. The states can’t simply decide they don’t like how the federal government is handling matters.

In Arizona v. U.S., the Supreme Court held that principles of federalism and the Supremacy Clause mean that states can’t displace the federal framework of regulation or conflict with federal law. That is essentially what Texas is trying to do. Texas isn’t even making a pretense that it has a legitimate goal here. The state is taking steps that are contrary to the rule of law, which requires a state and its officials, as it requires all of us, to follow a binding decision by a court. In Texas, even the rule of law has become a political football.

Lest you think Governor Abbott is just inexperienced in the subtle nuances of the law, this is from his official bio, “Before being elected Governor, he was the 50th and longest-serving Attorney General in Texas History. He also served as a Justice on the Supreme Court of Texas and as a State District Judge in Harris County.” So, a prosecutor and judge, both in trial court and appellate court. He graduated from Vanderbilt Law School. While I find it difficult to dislike a man with three Golden Retrievers named Peaches, Pancake, and Honey Butter Chicken Biscuit, you can’t avoid the conclusion that Abbott knows better and is disregarding clear law to score political points.

There will be more to come on Texas and immigration, where at least two other lawsuits are working their way through the courts. Texas maintained that the cost of closing the gaps in its razor wire created by the federal presence mattered more than impairing federal law enforcement and risking human lives. This is an issue it’s important to pay attention to.

We’re in this together,

Joyce