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PaperclipPerfector  9mo ago (text post)   31362 thread views

Culture War Roundup for the week of July 24, 2023

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Surprised no one’s posted this yet: https://apnews.com/article/texas-border-water-barriers-doj-immigration-83bcb38e7f5ab613117634d0c439d6b6?taid=64bee0cde6315400010b8821&utm_campaign=TrueAnthem&utm_medium=AP&utm_source=Twitter

The justice department has filed a lawsuit against Texas for installing a system of buoy barriers in the rio grande after Mexico demanded the federal government make Texas remove them, and Greg Abbott published a response to the justice department’s demand telling them to pound sand. This comes on the heels of a news cycle about Texas border security repelling migrants into the Rio grande and using razor wire, which in turn seems to have happened once the mass bussing of migrants to places outside of Texas became old news.

Politically, Abbott is strongly incentivized to refuse to comply, even if it’s illegal, and it’s worth noting that he’s literally a constitutional lawyer and knows that he’s not going to win the lawsuit. So the most likely outcome is this getting dragged out in courts until federal agents remove the barriers themselves.

The other major culture war angle here is that the state’s defense is a previous declaration of invasion giving them the right to secure their own border, even in contravention of federal policy. This argument does not seem likely to hold up in court; it’s based on far-right legal theorizing that gained traction for political reasons. As Abbott is a thoroughly establishment creature it’s an interesting development in itself and likely portends that the Texas center-right(which, despite what the media will tell you, is solidly in control of the Texas state government) will choose to build a coalition with the far right rather than the moderate left in the future, and it probably has broader implications/lessons for far-right movements in wealthy first world countries seeking political influence.

calling out @huadpe for posting in every single subthread about something irrelevant about international treaties and shitting up this discussion. I found the lawsuit and it doesn't mention treaties at all, so you can shill this theory all you want but the courts won't touch it with a 10 foot pole unless the AG drops the case and comes back with a whole new one. https://storage.courtlistener.com/recap/gov.uscourts.txwd.1172749163/gov.uscourts.txwd.1172749163.1.0.pdf

If you think someone is breaking the rules or otherwise "shitting up the discussion," report their post(s) so the mods can take a look at them. (Note: If you report someone's posts just because you don't like what they say, we will dismiss your reports.)

Don't do "call outs" like some kind of antagonistic hall monitor.

It doesn't seem like it will get mod action, so I don't see the point in reporting it. But repeating the same thing in every subthread makes it impossible to respond to directly given the threaded model, so I resorted to a higher level post. What is the reasonable thing to do here?

Nothing to add except that I appreciate the Texas state politics coverage, plz keep em coming.

Thank you. Realistically the 9th largest economy in the world with a population of 30 millions has politics at least as important as those of, say, Belgium or some other flat, dull, perfectly nice European country.

It’s a very bad move for conservative state governments to take border control into their own hands because the inevitable result is California officially opening the floodgates to unlimited illegal immigration on the basis that the federal government can’t do shit to stop them. Sanctuary state is one thing, “come have your anchor baby in California” advertisements across Central America is another.

Sanctuary state is one thing, “come have your anchor baby in California” advertisements across Central America is another.

They're the same picture.

I don’t know, I think you think it couldn’t be worse, but it could.

In a sane world, the result would be that the federal government accepts the assistance from Texas and focuses its efforts on dealing with California, because one central role of a federal government is controlling borders. The problem isn't Texas usurping federal authority, it's that the federal government actively undermines the existence of national borders.

I don't see how that would work. Texas isn't taking down Federally placed border control obstacles or taking control of border crossing checkpoints. They're simply installing more obstacles on the border. Is your supposition that this would inflame California to take down Federally placed obstacles (fences, walls) and to evict the Federal Border Guards from the crossing points and just throw them open? Because that's a whole level of escalation that I don't believe is even plausible at this time.

You’re correct that California has no control over ICE. But if California, say, fully bans e-verify (something they’ve tried to do for years), what’s the federal government going to do, send in the national guard?

The standard playbook is to withhold federal funds until they come back in compliance.

California- and lots of other states- are already out of compliance with federal drug law, so this depends on ‘is anyone going to enforce it’.

Sure, they could ban E-Verify, but that's hardly the same level as "opening the floodgates."

Politically the federal government will want Texas to remove these barriers. Practically I don't see that happening anytime soon. Fastest way to remove them would be for the federal government to do it. Which would allow Abbott and Texas to score political points.

Also, are we even sure that Abbott asked for these barriers? Or did he just get forced into these circumstances. Some local guys started manufacturing and setting them up. And Abbott is forced to co-opt it because his other options suck. If he didn't want the barriers his options are:

  1. Say he didn't want them and appeal to the feds to have the barriers removed. Shows he has no control over his state.
  2. Decide he doesn't want them and have his own people remove the barriers. Showing that he isn't serious about illegal immigration and losing local political support.

If Biden was smart he’d have the Coast Guard pull the buoys out of the water and dump them in front of the Governor’s mansion. Invite the press. Make it a whole event. Have some lady in an EPA uniform show up at the rivier holding a clipboard and shaking her head. You know, do something. Don’t just file a lawsuit like the wordcels you are.

And what if Abbott escalates back, and blocks the Coast Guard? Escalating is a great move whenever you're sure the other side won't counter-escalate. When you aren't, it's dicey.

Political showboating here is mostly to the benefit of people who are not the federal government.

Why? This is America. Politics as entertainment is a winning formula. Physically removing the obstacles would show that they have control of the border. Waiting for a federal court to tell Texas to take them out reinforces the narrative that it’s a free-for-all down there.

The USCG only has jurisdiction of navigable waterways, which afaict the Rio Grande is not. If it were, Texas' legal position would be much, much weaker. I'm not sure that matters though. Its an interesting situation all around.

I watched a long form interview/ride along on Youtube with a Texas sheriff where he spoke about what he can and can't do. They actually watched a group cross over from Mexico on foot from a distance. The sheriff said if they break state laws, he can act. If federal law enforcement requests their assistance, they can act. Otherwise he cannot intervene. Sorting out these coordination problems would probably be very helpful, if unlikely.

USCG only has jurisdiction of navigable waterways, which afaict the Rio Grande is not. If it were, Texas' legal position would be much, much weaker. I'm not sure that matters though. Its an interesting situation all around.

Federal definition of navigable waterway is any waterway that can be used for commercial purposes, specially defined to include recreational guideded canoe trips.

The barriers definitely came from Greg Abbott or somebody close to him. He ordered the guard to put them up.

I've seen a bunch of hot air on this topic but I haven't seen anywhere list all of the federal laws that were allegedly broken. Seems like this whole discussion is meaningless when the actual issue at hand is handwaved away.

Edit: Also even if Texas loses, I think they still win by doing this. They have sovereign immunity so will face no consequences, and the barrier is still there until the case slowly moves through the courts. I'd like to see more of this, the states can do anything they want except in the direct presence of an armed federal officer.

I haven't seen anywhere list all of the federal laws that were allegedly broken.

The most obvious is 33 U.S. Code § 403

The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.

The creation of any obstruction, not affirmatively authorized by law, to the navigable capacity of any waters, in respect of which the United States has jurisdiction, is hereby prohibited. The continuance of any such obstruction, except bridges, piers, docks, and wharves, and similar structures erected for business purposes, whether heretofore or hereafter created, shall constitute an offense and each week’s continuance of any such obstruction shall be deemed a separate offense. Every person and every corporation which shall be guilty of creating or continuing any such unlawful obstruction in this act mentioned, or who shall violate the provisions of the last four preceding sections of this act, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding five thousand dollars, or by imprisonment (in the case of a natural person) not exceeding one year, or by both such punishments, in the discretion of the court, the creating or continuing of any unlawful obstruction in this act mentioned may be prevented and such obstruction may be caused to be removed by the injunction of any district court exercising jurisdiction in any district in which such obstruction may be threatened or may exist; and proper proceedings in equity to this end may be instituted under the direction of the Attorney-General of the United States

My FIL has worked in Navigation for the ACoE for decades. He says the Rio Grande is not "navigable" under the federal definition and might was well be a very wet ditch as far as many federal jurisdiction issues are concerned with navigable waterways, which generally means accessible to commercial traffic. What they've done is more like erecting a fence or vehicle barriers on a land boarder.

The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited

If the border goes right down the middle of the river, then the barrier isn't really obstructing the navigable waters of the United States, assuming it's properly laid out?

The Treaty says that local authorities cannot construct things that are banned by article 3 of the Treaty of 1884, but that says that you can't make jetties, piers, or constructions that deflect the current. Buoys are not covered by this in the plain reading. Is there another clause that you were referring to?

Article VII of the Treaty of Guadalupe Hidalgo (1848) forbids some things on "The river Gila and the part of the Rio Bravo del Norte lying below the southern boundary of New Mexico." This might cover it.

the navigation of the Gila and the Bravo below said boundary shall be free and common to the vessels and citizens of both countries; and neither shall, without the consent of the other, construct any work that may impede or interrupt, in whole or in part, the exercise of this right; not even for the purpose of favoring new methods of navigation.

I think the question here is what a "work" means? Normally floating buoys would not count but I think an argument could be made that convinced me that this was impeding vessels.

I agree that their purpose is to block people. It does seem strange that there is a treaty that says you can't try to impede people crossing the border. I wonder if navigable normally refers to crossing a river rather than traveling down it lengthways.

Here is the legal US definition of navigable waterway: https://www.ecfr.gov/current/title-33/chapter-II/part-329

The US definition of navigable may not be that relevant as this is a treaty, not a US law. I don't know anything about how terms in treaties are interpreted, but I imagine that the treatment must be symmetric, so if US law matters, then so must Mexican law.

I also don't know enough to tell if the Rio Grande is navigable. Allegedly it is "too thick to drink and too thin to plow."

More comments

I don’t expect the state of Texas to actually remove barriers- what’s the federal government going to do, arrest an entire state?- but I also don’t expect them to prevent the feds from removing barriers themselves.

Well none of that actually matters. What matters here is power, and if Texas fails to comply, they are daring the Federal government to actually invoke their power to remove these obstacles, which is a loss for the Feds and a possible win or at worst neutral for Texas.

navigable waters.

Rio Grande isn't 'navigable' there. It stopped being maintained as a navigable river a century ago.

"Navigable", in the legal sense, can be anything as small as a kayak or johnboat.

ETA: The legal definition of navigable waters: https://www.ecfr.gov/current/title-33/chapter-II/part-329

There was the SCOTUS ruling earlier this year that touched on navigable waters since the whole EPA wetlands authority (clean water act) comes from wetlands being derivatively defined as navigable waters of the United States if they connect (by connecting to by connecting to...) or are near (for some definition of near) to a more traditionally navigable water.

There is a difference between the Waters Of The United States and the navigable waters. The navigable ones are the ones that can be used for interstate commerce, and the ones connected are the WOTUS. "a relatively permanent body of water connected to traditional interstate navigable waters);"

The court did not claim that wetlands were navigable, just that the clean water act applied to them.

Yes, I'm familiar with that one. Side rant: Holy !@#$%^&!@##&^%$#%^& was the MSM reporting on that case terrible. Even some of the better outlets I follow were reporting it as a 5-4 split, rather than the 9-0 "WTF, EPA!?" that it was.

Okay, if that's the case- doesn't the public interest of preventing illegal entry trump the interest of kayakers?

Maybe but that wasn't the point of my comment. I was simply correcting your apparent misconception on the meaning of the term "navigable waters" in this case.

Wild stuff:

As discussed in § 329.9 of this part, it is sufficient to establish the potential for commercial use at any past, present, or future time. Thus, sufficient commerce may be shown by historical use of canoes, bateaux, or other frontier craft, as long as that type of boat was common or well-suited to the place and period. Similarly, the particular items of commerce may vary widely, depending again on the region and period. The goods involved might be grain, furs, or other commerce of the time.

I often find that laws are just plain stupid and this seems like a great example. I can't imagine any honest person arguing that a river is "navigable" on the basis that someone brought a few beaver pelts across it in a canoe a hundred years ago, but that's certainly how the statute reads.

after Mexico demanded the federal government make Texas remove them

What, exactly, is the argument for removing border barriers? Can we analyze the tradeoffs and incentives? Why are Mexico and USA seemingly interested in more illegal border crossings while Texas is not? What are the costs and benefits? What are the tradeoffs? It seems to me that if foreigners are penetrating a border, the recipient country is justified to install disincentives and defenses.

First, if I'm Mexico, I am absolutely not letting the US unilaterally violate treaties we have made with them.

Ah, a treaty that requires that we make illegal activity easier.

I believe this is called policy laundering.

What exactly is Mexico going to do here? They have no recourse.

What if this could cause the river to make an oxbow and cut off part of one country or the other as an exclave?

That's happened a lot I believe. It's been handled fine in the past.

Mexico doesn't need a large number of illegal central Americans stuck in Mexico. They usher them along to the US.

The federal government is probably running off of pure ideology; Mexico wants migrants from further south to cross the border so that they’re in places which are not Mexico(the nearest place fitting they description being Texas), and also objects to border security measures which make Mexican exports to the US less convenient because those exports are a huge fraction of their economy. Texas, on the other hand, wants the centraco hordes to be in places that are not Texas, and the most convenient place fitting that description is them staying in Mexico.

As for the actual arguments being made, they have to do with water treaties, environmental regulations, and constitutional law.

deleted

If we ignore the policy substance (i.e. the immigration culture war aspects of this), the federalism issues also have a long history as a culture war flashpoint.

The TLDR version of the two sides are:

  1. The Federal government should have the necessary power to ensure that the US complies with its treaty obligations even if individual States don't want to, otherwise the US is an unreliable treaty partner.
  2. The Federal government should not be able to use treaties as an end-run around the principle of enumerated powers (or the rights of the States more generally).

It is very clear from the text of the Constitution* as well as the arguments made during the ratification that what the framers intended was (1) - although the Anti-Federalist papers make the case for (2), so it was a live issue on day 1. But the issue is not particularly relevant for the first 150 years because the enumerated powers of the federal government cover most of the things that 19th century statesmen negotiated treaties over (namely war and international trade). So the first time it starts to matter is with environmental treaties. The key SCOTUS case is Missouri v Holland in 1920 which said that a treaty with the UK (really Canada, but Canada was only de facto independent in 1920, not de jure) protecting migratory birds overruled State game laws in Missouri - note that under the pre-New Deal jurisprudence the Feds absolutely would not have won an argument saying that shooting migratory birds was interstate commerce.

The culture war on this point hots up after WW2 with the campaign for the Bricker Amendment which among other things would have explicitly reversed Holland - as far as I can see this is driven by John Bircher-adjacent conservative Republicans in the Midwest who don't like the Federal government because it did the New Deal and is probably full of Communists, don't like the UN for the obvious reasons, and are concerned about the possibility of the UN interfering in US domestic affairs. It naturally attracts the support of the White South (because the Federal government and the UN are both threats to Jim Crow) and so becomes one of the early "movement conservative" culture war issues. The Bricker Amendment was popular, and Eisenhower and LBJ had to twist a lot of arms to stop it passing.

The issue loses salience during the Cold War when the American right is bigger on anti-Communism than isolationism.

After the cold war the issue comes back on the agenda - mostly pushed by the group of libertarian legal scholars around Randy Barnett (who favours a set of new federalism amendments including something similar to the Bricker amendment). The key SCOTUS case is Bond which has utterly hilarious facts which will now be recounted, so keep drinks away from your keyboard.

  • Catherine Bond worked in a lab as a microbiologist. Her husband cheated on her with her best friend and got the friend pregnant.
  • Bond tried to poison the friend by using stolen chemicals to manufacture an arsenic-based contact poison and smearing it on her doorknob.
  • She gets caught, and the friend is not injured. Naturally the authorities want to throw the book at her, but because nobody was injured a lot of the juicy charges are hard to prove.
  • It turns out that the poison she used is legally a chemical weapon under the 1993 treaty forbidding chemical weapons.
  • So the Feds prosecute her for illegally manufacturing chemical weapons (under the 1998 Federal law implementing the US's obligations under the treaty) - which unsurprisingly carries a hefty sentence if it sticks.
  • After two trips to SCOTUS (one on standing and one on the merits), Bond wins 9-0 and the chemical weapons charges are tossed. Bond serves 18 months for stealing mail. The interesting thing is the breakdown of votes on SCOTUS. 4 liberals, Roberts and Kennedy voted to punt by interpreting the law in the light of the treaty - basically they said that because the treaty didn't cover Jerry Springer level shit, Congress couldn't have intended the law implementing it to cover Bond's behaviour. Alito, Thomas and Scalia write concurrences saying that the law as written clearly does cover Jerry Springer level shit if the shit involves a chemical weapon, but that Holland was wrongly decided and the law is unconstitutional on federalism grounds.

Again this turns into a good issue to unite the right - Bond was supported by corpocons (who opposed the treaty because they didn't like the idea of UN weapons inspectors inspecting US factories making dual-use chemicals), neocons (who opposed the treaty because they thought the US should retain the right to make and use chemical weapons if they turned out to be needed), UN-haters (who broadly overlap with social conservatives), libertarians, and gun nuts (who saw the ban on private ownership of chemical weapons as the thin end of the wedge towards the UN neutering the 2nd amendment).

She gets caught, and the friend is not injured. Naturally the authorities want to throw the book at her, but because nobody was injured a lot of the juicy charges are hard to prove.

Why is "attempted to cause serious harm/murder to another person intentionally" not good enough?

The reported appeals don't say - possibly because it would be a State crime and not Federal and the FBI or AUSA didn't want to hand the case over to the local DA. Possibly because attempted murder is notoriously hard to prove (you have to prove beyond reasonable doubt that she knew the poison she was using would have been lethal if the stunt worked). But the only thing that hit the public record are the charges and the verdict.

The people who invented it do not have political power above the very local level, and are mostly borrowing ideas associated with various extremist groups hanging around the fringes of the hardline end of conservative right wingers. You're obviously correct that Abbott is a pragmatist rather than a far-right ideologue. The legal theory he's using to defend his actions is, however, pretty far right fringe that he's resorting to mostly because he doesn't have a better fig leaf and he expects to benefit politically from this.

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