In the brewing showdown between Texas and the Biden administration over the border crisis, the Lone Star state is embroiled in at least three lawsuits over its efforts to defend its borders.
The state has erected physical barriers and implemented its own legal regime to prosecute and deport illegal aliens.
The federal government has challenged those efforts, and with the legal battles ongoing, experts differ on whether the Lone Star’s campaign will be futile or fertile.
Texas officials can’t charge those they apprehend with violating federal immigration law, so the Texas National Guard is handing detainees over to the Texas Department of Public Safety to be charged with trespassing under state law.
The growing throngs of illegal immigrants flowing across the border have been characterized by Republicans, including former President Donald Trump, as an “invasion.”
Twenty five Republican governors have united behind Texas. Some are sending their own National Guard troops to Texas to help out.
Three Cases
The most publicized of the three cases is Department of Homeland Security (DHS) v. Texas.On Jan. 22, the Supreme Court vacated an appeals court order that directed the federal government to leave Texas’s razor wire intact.
The court seemed to add to the chaos at the nation’s porous southern border, voting 5–4 to let the U.S. Border Patrol cut, if needed, the concertina wire fencing that Texas erected along a stretch of the Rio Grande in Eagle Pass, which borders the Mexican city of Piedras Negras.
The underlying case is still pending before the 5th Circuit Court of Appeals and may percolate back up to the Supreme Court.
Another lawsuit, United States v. Abbott, concerns a stretch of floating barrier the state installed in the Rio Grande to prevent illegal immigrants from wading or swimming across to Texas.
Texas moved for the full 5th Circuit to reconsider the panel’s decision. The circuit court granted the request and vacated the panel’s ruling. A full circuit court hearing on the merits of the case has yet to take place.
The third case, United States v. Texas, is about the new Texas law known as Senate Bill 4 that created state crimes against unlawful entry into Texas. It allows state judges to order illegal entrants removed from the United States and for state officials to carry out those orders.
Abbott’s Declaration
As the lawsuits grind their way through the nation’s judicial machinery, Texas Gov. Greg Abbott, a Republican, has vowed to continue his state’s border security effort as part of a project called Operation Lone Star.The $10 billion effort, which got underway in May 2021, is a joint operation between the Texas Department of Public Safety and the Texas Military Department, an executive branch agency responsible for the security of the state, which has the second-largest international border in the United States.
Texas will keep installing barriers to do the job the Biden administration refuses to do, the governor said.
In a Jan. 24 statement posted on X, Mr. Abbott accused the Biden administration of dereliction of its constitutional duty to defend Texas from invasion and laid out a Constitution-based declaration justifying his actions.
By refusing to enforce, and even violating, immigration laws, President Biden “has smashed records for illegal immigration,” allowing 6 million-plus illegal migrants to cross the southern border in just three years, Mr. Abbott wrote.
The Framers of the Constitution, he said, would not want states to be imperiled by “external threats like cartels smuggling millions of illegal immigrants across the border.”
That’s why they reserved to the states the right of self-defense and required the federal government to protect the states against invasion, he said.
Rep. Mary Gay Scanlon (D-Pa.) said this was “a crackpot legal theory” that attempts to “subvert our constitutional order for political purposes.”
Razor Wire
The Supreme Court’s decision to allow the Biden administration to cut the state’s barbed wire delighted Democrats and infuriated Republicans.Maverick County, which includes Eagle Pass, has been the recent epicenter of the border crisis because, as of June 2023, almost 25 percent of all illegal immigrant entries into the United States were happening there, according to U.S. Customs and Border Protection (CBP) figures.
Two conservatives, Chief Justice John Roberts and Justice Amy Coney Barrett, along with the court’s liberal members, Justices Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor sided with the Biden administration on the razor wire. The justices in the majority did not explain their decision.
Conservative Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh dissented. The justices in the minority did not provide reasons for their dissent.
The case is far from over.
After the Supreme Court ruled, DHS v. Texas was still pending in the 5th Circuit. The circuit court has yet to hear arguments on the merits of the case. After doing so, it may issue yet another injunction restraining the federal government.
Texas Defying Court?
Legal experts say the allegation that Texas is defying the Supreme Court by continuing the state’s policy of erecting concertina wire and barriers to prevent illegal immigrants from entering the country is untrue.
This claim has been echoed extensively in mainstream media reports and repeated by politicians such as former Rep. Beto O’Rourke (D-Texas) and current Rep. Joaquin Castro (D-Texas).
And because Mr. Abbott is using Texas National Guard troops in the border security project, both Mr. O’Rourke and Mr. Castro have implored President Biden to take the drastic step of federalizing the Texas troops, a move Mr. Abbott said would be a “political blunder.”
Mr. O’Rourke recounted when the late Arkansas Gov. Orval Faubus, a Democrat, refused to comply with the Supreme Court’s landmark desegregation ruling, Brown v. Board of Education (1954), and used Arkansas National Guard troops in 1957 to prevent black children from attending Little Rock Central High School.
In response, President Dwight Eisenhower, a Republican, federalized the Arkansas Guard to ensure compliance with the ruling.
“Biden must follow this example of bold, decisive leadership to end this crisis before it gets worse,” Mr. O’Rourke said.
Attorney Mark Miller of the Pacific Legal Foundation, a national public interest law firm that challenges government misconduct, pushed back on the idea that Texas has been defying the nation’s highest court.
“Everyone’s saying, ‘well, Texas is flouting the Supreme Court’s order.’ That’s not true,” Mr. Miller told The Epoch Times.
“The Supreme Court did not say, ‘Texas, you can’t lay more wire.’ They just said the federal government can cut the wire,” he said.
Christopher Hajec, director of litigation at the Immigration Reform Law Institute, agreed.
The Supreme Court merely vacated the injunction the 5th Circuit issued against federal officials cutting the concertina wire, he said, adding that the administration “is free to go ahead [with] cutting it.”
Texas is not defying the court by building its defenses as it is constitutionally entitled to do, he said.
Longtime court watcher Curt Levey, president of the conservative Committee for Justice, views the ongoing episode as an important civics lesson for the American public.
At the moment “there’s not yet a true conflict here,” he said.
“Beto O’Rourke and others have falsely stated that Texas is defying a Supreme Court order,” he said. He recalled a White House press briefing last week in which a reporter was “virtually demanding” to know why the Biden administration wasn’t taking action against Texas.
“I think it’s a good opportunity to understand the nuances of legal procedure and constitutional law,” Mr. Levey said.
Floating Barrier
In the floating barrier case, United States v. Abbott, a federal district judge rejected the state war powers argument and ruled against the state and its barrier.
The state placed the 1,000-foot barrier in the Rio Grande near Eagle Pass.
Mr. Hajec said he hopes that if the full 5th Circuit reaches the war powers issue, it will find it is a “nonjusticiable political question” and defer to Texas authorities.
If a question is nonjusticiable, this means it is not capable of being assessed according to legal principles by a court.
Justiciability rulings happen when a court lacks the power to hear a case under the Constitution or determines that doing so would be an imprudent exercise of judicial power. The political question doctrine prevents federal courts from hearing constitutional questions that are considered best decided by other branches of government.
“Imagine if Texas were invaded by Mexico, no one would doubt Texas could use its own troops to repel the invasion and we wouldn’t have to worry about the Rivers and Harbors Act because it would be an invasion,” Mr. Hajec said.
That situation is hard to distinguish from the status quo in which Mexican cartels, which amount to foreign paramilitary organizations, are attacking the United States, he said.
After the various lawsuits are eventually concluded, Mr. Hajec said he is “optimistic” that Texas will still be able to erect razor wire and other kinds of barriers to defend its territory.
In United States v. Texas, about Texas’s parallel immigration enforcement system, the Biden administration’s legal complaint cites Arizona v. United States (2012), which held the U.S. government has “broad, undoubted power over the subject of immigration and the status of” noncitizens. When state law on the same subject conflicts with federal law, state law must give way.
In that case 12 years ago, the Supreme Court struck down three out of four provisions in the Arizona law known as SB1070 that then-Gov. Jan Brewer, a Republican, signed into law in 2010. The legislation gave authority to local law enforcement to enforce federal immigration law. The court held the offending provisions violated the constitutionally enumerated powers of Congress and were preempted by federal statute.
Mr. Hajec said if the federal government isn’t honoring its responsibility to protect borders and enforce immigration laws, states are entitled under the Constitution to act.
Repelling an Invasion
Mr. Abbott’s argument that his state is entitled to defend itself against an ongoing invasion, which applies to all three lawsuits, is worth examining, Mr. Hajec said.The razor-wire barriers are “classic defensive measures that are war measures,” he said.
A war carried out under Texas’s “constitutional authority in the event of invasion is not preempted by the administration’s enforcement priorities.”
Federal preemption means that a state law that conflicts with federal law is invalid.
It is Mr. Abbott’s responsibility to decide if Texas has been invaded and how to repel the invasion, Mr. Hajec said.
Mr. Miller was skeptical about the invasion-based rationale for Operation Lone Star.
“If you look at the actual language of the Constitution, I’m hard-pressed to imagine that the governors would say they can go to war over this.”
What is interesting about Mr. Abbott’s assertion that the federal government is not living up to the compact between the federal government and the states that culminated in the adoption of the Constitution, is that if “you really were to hold Abbott to that argument … he’d have to say that this invasion means he can engage in war at the border.”
Experts Disagree
Legal experts differed in their assessment of the overall strength of Texas’s legal position.Mr. Hajec said Texas’s stance is bolstered by the Supreme Court’s 2020 ruling in Kansas v. Garcia.
“The Constitution and the law are in favor of people who are trying to achieve the purposes of the law. That’s all to Texas’s benefit here.”
In Kansas v. Garcia, Kansas had enacted a law that allowed the state to prosecute illegal immigrants for identity theft when they work under federally issued Social Security numbers belonging to others, even though federal immigration law already regulates whether such individuals may work in the United States. In recent years, the federal government has shown little interest in prosecuting such cases.
The Kansas law was challenged on the ground that the state’s prosecutions of illegal immigrants for identity theft were preempted by federal law, he said.
The federal Immigration Reform and Control Act (IRCA) of 1986, which made it a crime for employers to hire persons who lack the legal right to work in the United States, was thought to preempt the application of state identity theft laws against illegal migrants.
The Kansas Supreme Court found IRCA preempts the application of state identity theft laws whenever any of the information needed for the prosecution is contained in or attached to a federal Employment Eligibility Verification—known as a Form I-9—even when the state prosecutes for the use of that very same information in non-IRCA documents.
But in the case, the U.S. Supreme Court upheld 5–4 the power of states to go after such individuals for identity theft even if the same false information appeared on federal I-9 forms.
The court held that IRCA did not preempt the Kansas statute, which dealt with employees’ conduct, an area not covered by IRCA.
Mr. Hajec said the court found that “the mere executive policy of not wanting to enforce the law … had no preemptive force.”
“Texas is free under this standard to pursue the objectives of Congress itself,” which has prohibited illegal entry into the United States, he said.
The state-erected barriers further congressional objectives and don’t interfere with the goals of the federal Immigration and Nationality Act, he said.
Mr. Miller said it is unclear what the Supreme Court may do in the future about DHS v. Texas and the other lawsuits, but the federal government appears to have the better legal argument because of the court’s 2012 precedent in Arizona v. United States, which invalidated a state’s efforts to control illegal immigration.
But Mr. Abbott “has demonstrated quite the ability to use political leverage in the immigration issue.”
The failure of Congress and the executive branch to meaningfully address the immigration issue has put the country in its current predicament, the attorney said.
“I think many reasonable Americans on both sides of the political aisle say this is untenable. And so Abbott is trying to up the pressure on the federal government to do something about it,” Mr. Miller said.
It was “pretty clever” to start shipping illegal immigrants to “cities that claim to be sanctuary cities and saying, ‘Okay, live up to your big talk.’”
Mr. Levey said in this contest between Texas and the federal government, “it’s a close call given that the Constitution does give the federal government the power to secure our borders.”
Because the executive has leeway in how it enforces the law, the Biden administration would argue that “in its own way it is securing the border,” Mr. Levey said. But “it’s a weak argument.”
The fact that the administration can’t identify any statute that allows it to cut down the razor wire, and the fact that removing the fencing seems counter to the objectives of federal law, weakens the U.S. government’s position, he said.
Combine the constitutional provision that recognizes states’ right to self-defense with the other arguments, and Texas “has the better argument here,” Mr. Levey said. But he said it’s “a close call.”
However, “it’s not a close call politically.” It is “absurd” for the Biden administration to profess a desire to secure the border while stopping Texas from defending its frontier, he said.
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