We are about to have a serious, and overdue, conversation about the relationship between the states and the federal government. Governor Abbott's letter raises some important issues that Americans need to consider seriously.
UPDATE BY GRIM: Twenty-five state governments including Texas, as governors have signed a letter of support for Abbot.
17 comments:
Many years ago, Eric Blair said that he'd start taking talk of a 'second civil war' seriously when the states started to form up with real resistance to the Federal government.
As a lawyer, you might find this case to be relevant.
https://supreme.justia.com/cases/federal/us/287/378/
It touches on the power of a governor -- a Texas governor, as it happens -- to use military force in a similar way (though in quite different circumstances).
Grim,
Thank you. I'll read that opinion.
The below excerpt from the Declaration of Independence seems regrettably relevant again:
"He has forbidden his Governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained; and when so suspended, he has utterly neglected to attend to them."
IMO it started similar to the first one with Democrats simultaneously demanding that non-Federal jurisdictions be free to ignore immigration laws that they objected to while being prohibited from enforcing their own laws (The Fugitive Slave Act)
Has The Federal Government Broken The Compact Between The States And The Union?
Not only yes, but hell yes.
Greg
Our Constitution's Art I, Sect 10 says this:
No State shall, without the Consent of Congress...engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
Texas and more than 50 counties herein have formally declared an invasion in progress. Texas sealing the border, vis., with barbed wire and its National Guard, is a defensive act against that invasion, so there's that.
Eric Hines
I believe this is 25 State governors other than Texas which makes 26 which makes a majority. I know that doesn't mean anything legally/Constitutionally but wow!
I believe this is 25 State governors other than Texas which makes 26 which makes a majority.
It's sharper than that. All 26 are Republican-led States. Most of the remaining are led by others.
Eric Hines
Yeah, I noticed that North Carolina is not on the list, but we have a supermajority Republican legislature in both houses and a majority Republican Supreme Court. So it’s really just the governor who is keeping us off the list; and that could be considered grounds for impeachment, not defending constitutional powers of the state.
North Carolina's AG also is a Democrat; that's not helping the legislature. He's the one who'd have to defend the State's actions in court, and he'd be unlikely to do so were the legislature to make its move unilaterally, in any concrete way, in favor of Texas.
Separately, I actually think the Supreme Court ruled correctly in a textual way, regarding the Federal government's border enforcement role. On the other hand, I think Abbott's letter in response is just as sound textually. (The cynic in me thinks that Roberts went with majority that he did, rather than with the other potential majority, out of his timidity regarding heavy duty rulings.)
My point in that is that even with strict textualism, there is plenty of room for judicial judgment; textualism doesn't reduce judges to robots rotely acting, as some critics of textualism worry.
Aside from that aside, what the Supremes actually did was simply remove the 5th Circuit injunction against the Federal government. The ruling was not on the merits, and as I understand such things (which may be quite meager), the matter has yet to come to the Supreme Court in any substantive way.
Eric Hines
There comes a time when courts are irrelevant. Events can overtake legal rulings and render them moot.
Governments, too.
Possibly already noted but Glenn Reynolds has a post pointing to a couple of experts (one being NR's Andrew McCarthy) explaining how virtually all the reporting on the USSC ruling is wrong. (in other events the sun set in the west and water is still wet.)
https://instapundit.com/628802/
That's funny, because my son (who is still quite young), picked up on that right away. "ALL the reporting on this ruling is moronic", as he put it.
The SCOTUS can be quite conservative in finding ways to rule on procedural matters rather than substance. This can prevent a ruling with far-reaching consequences; but this time they may have provoked far-reaching consequences thereby.
One more bit on the Constitutionality of Abbott's move.
Here's a link to the actual Supreme Court ruling: https://s3.documentcloud.org/documents/24371123/supreme-court-ruling-on-razor-wire-at-us-border.pdf
The 5th Circuit's ruling is here: https://www.texasattorneygeneral.gov/sites/default/files/images/press/C-Wire%20Injunction%20Pending%20Appeal.pdf It's an injunction pending appeal.
There's also this bit from a Jewish World Review matter on the matter:
That both the federal government and the states may wield power as fully sovereign entities within our constitutional order is constitutional law 101.
As the late Justice Antonin Scalia wrote in the 2012 Supreme Court case Arizona v. United States, "As a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress." (In Texas' current case, there is no relevant constitutional limitation or congressional imposition.) Later in his separate Arizona writing, Scalia continued: "(A)fter the adoption of the Constitution there was some doubt about the power of the federal government to control immigration, but no doubt about the power of the states to do so." (Emphasis added.)
Toward the end, Scalia approached his denouement: "But there has come to pass, and is with us today, the specter that Arizona and the states that support it predicted: A federal government that does not want to enforce the immigration laws as written, and leaves the states' borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign states at the mercy of the federal executive's refusal to enforce the nation's immigration laws?"
Eric Hines
This can prevent a ruling with far-reaching consequences; but this time they may have provoked far-reaching consequences thereby.
As I understand it, as written the ruling should not have provoked anything. What may provoke the consequences is the reporting around it which people on both sides are getting wrong. People saying Texas is defying the Supreme Court are wrong, whether they are presenting it as a good thing or a bad thing. I know someone earlier linked to an explainer but this one seems simpler to me:
https://twitter.com/alexthechick/status/1750225515456110788
If I understand it correctly, there isn't anything else the Court could have ruled on at this time. They could either side with Texas and constrain the Feds; or they could return the issue to a non-judged status. They chose the latter. Had they chosen the former, I think that would have been worse.
*(Emphasis added.)*
The emphasis added was in the immediately preceding phrase: no doubt about the power of the states to do so.
Sorry about that.
Eric Hines
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