What Texas is (and is not) doing to defy a Supreme Court setback

Analysis by Zachary B. Wolf, CNN

(CNN) — Texas Gov. Greg Abbott said this week he will continue to defend his state’s border despite a 5-4 Supreme Court order that the US Border Patrol can take down razor wire Texas set up along portions of the US border with Mexico.

Questioning the court’s action, the Republican governor criticized its lack of clarity when it sided with the Biden administration, which wants to remove the razor wire while a legal challenge to Abbott’s actions plays out.

“There were no sentences, or paragraphs or pages of an opinion written by the Supreme Court, so no one knows at all what they were thinking – all we know is that they wanted to send it back to the 5th Circuit,” Abbott said on Fox News, arguing, “There was no opinion about anything – about razor wire, what Texas is doing or anything like that.”

The razor wire issue is playing out as part of a larger standoff in which Abbott argues by not acting more forcefully at the border, the federal government has violated its responsibility to protect the state from “invasion.”

Is this a governor essentially ignoring the Supreme Court? Why is the federal government in charge of border policy in the first place? I went to CNN’s Supreme Court analyst Stephen Vladeck, a law professor at the University of Texas at Austin, with those questions. Our conversation, conducted by email, is below.

Abbott is not ignoring the Supreme Court

WOLF: How does Abbott justify essentially ignoring the Supreme Court?

VLADECK: It’s really important to stress that two different things are true: First, Abbott is not “essentially ignoring” the Supreme Court. Second, he is interfering with federal authority to a degree we haven’t seen from state officials since the desegregation cases of the 1950s and 1960s.

With regard to the court, all that the justices did on Monday was to vacate a lower-court injunction, which had itself prohibited federal officials from cutting or otherwise removing razor wire that Texas officials have placed along or near the US-Mexico border.

Nothing in Monday’s unexplained order stops Abbott from doing anything; it just means the federal government can’t be sanctioned by courts if it takes steps to remove those obstacles.

Instead, the real issue here is that Abbott is deliberately impeding the ability of federal officials to act in and around Eagle Pass – in a way that isn’t in outright defiance of the Supreme Court (yet), but that is inconsistent with the supremacy of federal law.

That’s why Abbott is trying to invoke a claim that the federal Constitution itself authorizes what he’s doing, because if the Constitution doesn’t empower him to take these steps, then “preemption” (the idea that federal statutes and federal policies promulgated pursuant to those statutes override contrary state laws and policies) should be the whole ballgame here.

Abbott misuses the Constitution to declare an ‘invasion’

WOLF: Abbott has tried to justify his actions at the border by declaring an “invasion” in Texas. That language has been used for political reasons by Republican lawmakers. But it also has legal importance in the Constitution. Is the Supreme Court likely to agree with him?

VLADECK: No. The actual provision Abbott is purporting to rely on is part of Article I, § 10, which limits states’ powers. And it prohibits states from “engag[ing] in war” without congressional consent “unless actually invaded.”

The point of this provision – adopted at a time when we had a tiny federal army, Congress was usually out of session and travel took weeks – was to allow states to defend themselves from foreign invaders until federal authorities arrived.

It was never understood, and has never been understood, to allow states to interfere with or otherwise override federal law enforcement – even if it’s an “invasion” (which, it should be said, this isn’t).

Were it otherwise, states could use their own claim of being “invaded” as a justification to resist whatever federal laws and policies that they didn’t like – a modern-day version of the “nullification” arguments that didn’t survive the Civil War.

Abbott does have a point on one thing

WOLF: Does Abbott have a point about the lack of clarity in the court’s ruling? When we last we spoke, it was about your own research on the shadow docket and the problem of the court wielding power without writing decisions.

VLADECK: Yes. One of the real issues with the Supreme Court handing down such significant rulings without explanation, as I write about in “The Shadow Docket,” is the lack of guidance it provides to government officials, lower courts and the public about what is and what is not allowed going forward.

Unfortunately, Monday’s ruling is a perfect example. Abbott is, quite obviously, provoking a fight over how far states can go to supplant, and not just supplement, federal law enforcement authority.

Until and unless the Supreme Court conclusively answers that question, we’re going to be in this limbo – with the unseemly prospect of a physical standoff between state and federal officials in Texas while that question goes unanswered.

Who is supposed to be in charge of immigration policy?

WOLF: Why is it that immigration policy is set aside for the federal government?

VLADECK: I don’t think it’s quite right to say that “immigration policy [is] set aside for the federal government.” The Constitution gives the federal government the power to regulate naturalization, which the Supreme Court has long interpreted to also include a power to regulate immigration and border security.

But the Constitution leaves the extent of federal involvement almost entirely up to Congress.

So part of the issue here is that, as the Supreme Court has repeatedly held, Congress has passed a number of statutes that themselves give the federal government a dominant role in both setting and implementing immigration policy.

And once Congress has legislated, those statutes – and their enforcement – take constitutional precedence over any state policy to the contrary, no matter how much we might prefer what a state is doing to what the federal government is doing.

As Justice Robert Jackson wrote for the Supreme Court in 1954, courts “cannot resolve conflicts of authority by our judgment as to the wisdom or need of either conflicting policy. The compact between the states creating the Federal Government resolves them as a matter of supremacy. However wise or needful [a state’s] policy, … it must give way to the contrary federal policy.”

If we don’t like federal policy, the answer is to change it, not to let states override it.

Congress keeps failing to act. Is this their fault?

WOLF: There is a larger issue with our duct-taped immigration policy. Congress has been trying and failing for decades to pass comprehensive immigration reform, which has left the federal bureaucracy and the courts to fill in the blanks on outdated laws. Would a new comprehensive law solve the problem of these standoffs between border states and Democratic administrations?

VLADECK: There’s no question that Congress’ inability to enact comprehensive immigration reform is part of the issue here – because that gap has given presidents (of both parties) far more control over the contours of immigration policy than they would have if Congress were more invested in it.

That, in turn, has led to far sharper conflicts between red states and Democratic presidents and between blue states and Republican presidents.

And the fact that congressional Republicans at this exact moment are backing away from immigration reform because they’d rather run on border issues than fix them says a lot about both why Congress hasn’t solved these issues and why states are now (wrongly) taking it upon themselves to try to do so, or at least to try to look like they’re doing so.

Is this a trend?

WOLF: I am reminded of last year when Alabama legislators initially did not comply with a Supreme Court decision requiring a second majority-Black congressional district. The cases are different in many ways, but is there any similarity in the spirit of pushback against the court by Republican state officials? Is this a new phenomenon?

VLADECK: As I’ve written for my Supreme Court newsletter, I don’t think it’s right to say that Alabama didn’t “comply” with the court’s ruling in Allen v. Milligan; they just tried to make an argument on remand that Justice [Brett] Kavanaugh had brought up but not addressed at the time of the court’s decision.

Just like Abbott and Monday’s ruling, I don’t chalk either of these cases up to direct defiance of the court.

That said, the calls we’ve seen this week from Republican elected officials at both the state and federal level to ignore the Supreme Court (which are also premised on a misunderstanding of what the court did and didn’t do) are more than a little alarming – and evidence of how the Supreme Court’s declining public credibility has ramifications not just for left-wing critics of the court, but for right-wing critics, too.

It says a lot about where we are that even this Supreme Court isn’t far enough to the right to satisfy these politicians – and it says a lot about the costs of the eroding public confidence in the court that attacking the court from the right is becoming increasingly popular.

Indeed, we’re seeing in real time exactly why it’s important for the court to have broad-spectrum support: So that if and when it does need to intervene more aggressively in disputes like the current conflict between the federal government and Texas, there are no serious doubts that it can and should resolve them.

How would the court treat Trump’s promise of mass deportations?

WOLF: Anything Republican governors are doing vis-a-vis the border should, I think, be viewed in the context of how a second Trump administration might play out. He has promised, for instance, mass deportations and camps modeled on the horribly named “Operation Wetback” of the 1950s. How do you think the court might view such a mass deportation effort?

VLADECK: The reality, for better or worse, is that the Supreme Court has historically shown broad deference to executive branch immigration policies without regard to whether those policies were set by Democratic or Republican presidents.

In a second Trump administration, I expect that the most serious challenges would be to how these policies infringed upon the rights of immigrants – as opposed to current challenges to the Biden administration, which are framed more in terms of federalism and states’ rights.

To that end, I think the real precedent that these current disputes are going to set, one way or the other, is whether states really can have what are effectively their own immigration policies – whether because of a twisted reading of the “actually invaded” language of Article I, § 10 of the federal Constitution, or because the current Supreme Court is going to rein in the scope of federal preemption.

The court’s 2012 ruling in Arizona v. United States, in which a 5-3 majority sided with the federal government to block most of an Arizona law that tried to create a form of state immigration policy, is looming increasingly large.

But if what Texas is doing leads courts to give states more leeway to interfere with federal immigration policy, it’s hard to see why blue states won’t follow that roadmap during a second Trump administration.

In the end, federalism isn’t partisan – which is exactly why those who are sympathetic to what Texas is doing as a matter of policy should nevertheless be more than a little alarmed by what it is doing as a matter of fundamental constitutional principles of federalism.

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