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There is a happening currently happening along the Texas/Mexico border which seems to be escalating in an interesting way.
The state of Texas has been taking measures to secure their border with Mexico. These measures include installing concertina wire (colloquially known as "razor wire") along the border.
A supreme court ruling said that US Border Patrol (the feds) are allowed to go into Texas against Texas's wishes and cut this wire. As /u/slowboy points out below, it is a bit more nuanced than that. There was an injunction preventing CBP from going to cut the wires, and the Supreme Court overruled it. Interesting culture war fodder: Amy Coney Barrett sided with the majority on this.
Yesterday, Greg Abbot signaled that he did not have any intention of complying with this.
Today, President Biden said that Texas has until tomorrow (Friday) to let them in. (Sorry for the low quality link here. If somebody has a better one please share it).
This does seem to be escalating rapidly. I don't see where the offramps are other than Abbot backing down. If he doesn't, what does that mean? Texas National Guard vs the Federal Government sounds awfully close to...I hate saying this, but a civil war? That's not right though since I can't imagine them shooting at each other.
This is also confusing to me politically. The border situation is not a political win for Biden. Even among liberals the cracks are starting to show. Morning Joe (msnbc show) this morning was talking about how there is a border crisis and it's the republicans causing all this illegal immigration by not doing a "Comprehensive Immigration Policy". That's obviously absurd, but it does show that liberals are willing to agree that completely open borders are suboptimal.
Edit: Trump weighs in
This, to my stupid non-lawyer brain, seems way more like an "incitement to insurrection" than anything he said on January 6th. Interesting.
I know you described the situation correctly, but I want to emphasize this point because it was not obvious to me when I first heard about this story: Texas is not directly defying the Supreme Court. The Supreme Court did not order Texas to do anything. The Supreme Court refused to uphold an injunction against the Federal Government, i.e., they said that Texas can't order the Federal Government to stop cutting wires. It's a distinction without a difference, but a big difference.
Still, if you had presented me this story a month ago, I would have guessed Texas would have backed down already. So I'm moderately surprised this is being fought. I'm still pretty cynical about a lot of Republican politicians, but maybe there's something a little deeper going on here.
Texas is standing up because they kind of are actually defending themselves against an invasion right now. Several hospitals are basically only serving migrants and aren't being compensated. They are threatening to shut down and leave the state. Biden has no political leg to stand on, and only a thin legal leg that there are 4 strong votes on SCOTUS to kick out from under him, and 2 questionable votes.
Er, Biden has a very strong legal leg to stand on. It's not an invasion, it's illegal immigration. The current situation is different in scale to what has happened continuously for many decades but not conceptually. I understand the desire to rhetorically brand the situation an "invasion", but it's not actually what it is. October 7th is what an invasion looks like.
The federal government does in fact have the legal authority to administer immigration law. That the current one is doing so very badly does not change this.
It's more of an invasion than Jan 6 was an insurrection. A govenment brininging in foreigners to prop up their domestic power is usually considered colonization, that might be a better term.
The situation is a little more complex than that. Imagine if Trump were President. The courts would never rule that the executive branch has unlimited power to interpret and adminster immigration law without review.
However the current administration of immigration law by the Biden admin isn't consistent with the laws congress has passed. However the courts and legal class generally support what Biden is doing.
They don't want to give him carte blanche power. They don't want to stop him, or are at least afraid of pushback from the legal establishment.
So what do they do?
So far their answer has been to use standing to block any lawsuits. Things are going to get interesting if Texas can force the Feds into court.
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I don't think Biden and Garland's case here is nearly as strong as people keep saying it is.
The White House's argument rests entirely on a single assumption. Namely that it is illegal for a member of a Municiple or State Police force to enforce federal laws, Ditto military police (who are ordinarily considered federal cops) attached to the National Guard unless their command has been federalized and explicitly ordered to do so by the president.
That's not something that's actually written in a statute anywhere, it is an assertion being made by White House based on the preemption doctrine. It is not clear to me that Texas making it a state crime to violate federal immigration law as a pretext to use State Law enforcement and National Guard to erect fencing and make arrests is actually prohibited by the supremacy clause. And it is not clear to me that it even violates the preemption doctrine because in theory there would have to be some discrepancy between the law as passed by congress and the law as enforced by the state in order for it to do so and federal immigration laws are still on the books.
Not really. The actual case being litigated (see briefs) is much simpler, although this is confused because both sides appear to be arguing in bad faith. The Feds want to be able to cut the wire, Texas opposes them. The instant litigation isn't about what happens to the immigrants. If Texas authorities started doing what they say they want to do (i.e. summarily returning border-crossers who are mostly not Mexican to Mexico) then there would be a whole extra layer of litigation.
The Feds' position is that black-letter law gives the Border Patrol the right to enter private property within 25 miles of the border in the course of their official duties, and that cutting the wire is necessary to do so expeditiously. Texas's position is that they have a property right in their barbed wire. Given the facts (critically, that Abbott has made no secret of the fact that he wants to exclude the Border Patrol from Shelby Park) this is an easy win on the law for the Feds.
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Historically this is invasion. The Romans never would have let millions of migrants enter their territory and use their resources. They would have slaughtered them.
If I open a dictionary this fits many of the definitions you will find. I’m sure in about a week all those definitions will be modified to make sure invasion only means with guns.
We also frequently use the word “invasive species”. Those aren’t species using force to enter a new environments. Often their species that lack predators and therefore grow uncontrollably.
So often a debate does come down to the definition of a word.
I would note you I believe think Trump committed insurrection on Jan 6. In many ways this is very similar but I do believe the gap between: Trump gives speech causing riot is the meaning used by 14th amendment rioters as an insurrection is much larger than the gap between the definition of invasion constitutional writers used and what is occurring at our southern border.
This just comes down to how stretchy are the words invasions and insurrection.
...they did.
In any event, it's not really clear why we should consider the Romans a model for behavior.
"Invasion" rhetoric is classic Motte-and-Bailey equivocation. Nativists want to borrow the alarming connotations of the word to hype up support for radical measures, then, when their critics point out that there's a slight difference between people making dodgy asylum claims and an armed force sacking El Paso, fall back on "invasion has other meanings". If Latinos are "invading" like Japanese tourists, the claim becomes a lot less exciting.
When? If you are talking about the resettlement of the German tribes inside imperial borders, they only did that after smashing them in battle and disarming them. Sometimes they would skip the smashing in battle bit, but there would always at least be a negotiated settlement before the tribes were allowed to move into the empire uncontested. Towards the end of the empire they stopped disarming the Germans, but that was definitely not by choice, it was because the empire was falling apart.
Check
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I think it’s a lot more than a motte-Bailey.
It’s also a legal term to deal with a real issue. So the definition matters because it is in the constitution. And winning the definition means having jurisdiction and the ability to fix a real problem. Sure having he Mexican Army bombing Houston isn’t the same as immigrants but in both situations the law provides real remedies to the lack of federal action. Texas has a need to defend themselves either way.
The end result of invasion of the Mexican army attacking or migrants is the same. Either situation threatens the sovereignty of Texas and the loss of territorial control.
Even if that's true (which is a big if, one I disagree strongly with), the end result isn't all that matters. Invasion requires intent as well as results.
Surely if interstate commerce includes non-interstate non-commerce, invasion includes immigration.
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You don’t think this invasion has intent?
There are plenty of NGO’s facilitating transport to the border.
Results? We are already set to be a majority minority country and all that entails as far as control of governance. Plus 6 million new inhabitants since Biden took over. That seems like a result.
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The federal government is going there with forklifts and lifting up the wire to facilitate their entry. That's a bad policy choice, but it's also clearly a choice. Never mind the lack of force, these people aren't even violating a "please stay out" sign. They're being welcomed in.
It's irrelevant that the Romans wouldn't have allowed it. The Democrats are allowing it, and they are the government.
At least with Am14S3, there is a requirement that an individual "engaged in" insurrection, yet even there, we have briefs by eminent Constitutional scholars submitted to the Supreme Court saying that it is sufficient for Trump to have simply done nothing to stop it. A4S4 doesn't speak to any individual engaging in the invasion, helping it along, or being passive to it. What people in the US are currently doing WRT a possible "invasion" simply has no bearing to the current question of whether it is, in fact, an "invasion" according to the Constitution. The conclusion of that question would have implications as to what certain folks are supposed to do, but that someone is or is not doing what they are supposed to do is not dispositive on the question of what the word means. For example, if we saw the government performing unconstitutional searches as a policy choice, we wouldn't say that it must be the case that those searches don't actually fall under the Constitutional definition of a search. We'd just say that they're doing a thing that they're not supposed to be doing. It would be similarly silly to say that Jan6 couldn't meet the definition of insurrection if Trump made it a policy of the gov't to let them into the Capitol.
To be clear, I'm not taking a position on whether it is or is not an "invasion". That would require different analysis.
That's true, but let's be blunt: that's not an opinion those scholars arrived at based on an impartial reading of the Constitution. It's motivated reasoning which stems from the fact that they really don't like Trump and want to see him go down regardless of whether he deserves it. It's not an example to follow.
I do think that the historical evidence is strong that the original public meaning of "engaging in insurrection" was broad at the time that the 14th Amendment was adopted. E.g. Andrew Johnson's Attorney General issued an opinion on section 3 that said "...where a person has by speech or by writing, incited others to engage in rebellion, he must come under the disqualification". And Johnson was of course an opponent of the 14th Amendment.
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No the democrats are not the government. Biden is the executive. He is arguably (weasel word) failing his oath of office.
Inaction is almost certainly not justiciable but there is a real political argument that Biden’s policy is ultra vires and therefore not an action by the government.
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Again an invasion doesn’t require use of force by many dictionary definitions. Nor does the constitution explicitly define invasion as by force.
Like I said invasion is like insurrection. Both have some stretchy meaning.
What's your principled reason for adopting a narrow definition of insurrection and a broad definition of invasion?
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It's a "policy" of directly facilitating mass violation of federal law, the previous "policy" of refusing to enforce the law for decades having been found insufficient. It is yet another in a long list of absurd violations that discredit any conception of rule of law in this present "nation".
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I think Abbott should keep shipping the migrants to New York and other 'sanctuary cities'. If they have no problems with uncontrolled border crossings, they should have no problems if those migrants keep right on crossing all the way to their doorstep, right?
It's a bad situation all round; do the Democrats want to do anything about illegal immigration, or are they happy to let the border states deal with all the people streaming in and needing resources, and they can just keep it as a political point about "we're compassionate and pro-minority, unlike those awful Republicans, (but don't ask us to have those people live next door)"?
Enforce the border, or pour more resources into providing hospitals etc. and keeping track of who turns up and where they're going. As it stands, it's a mess and nobody's reactions are doing any good.
I disagree,
In fact I would argue that Abbott has decision making throughout this mess has been consistently good/correct from both a legal/game-theoretic perspective and a Christian/Moral one.
From a purely legal standpoint the White House's case is much weaker than it's being made out to be as, in theory at least, in order for the supremacy or preemption clauses to take effect there would have to be a meaningful discrepancy between the law as passed by congress and the law as enforced by state officials. Those laws are still on the books even if the Feds aren't enforcing them.
From simple "good governance" perspective Abbott is representing the will/interests of his constituents.
From a Christian perspective helping those who wish to migrate reach places where they will be welcomed and cared for (IE those cities that have declared themselves to be Sanctuaries) is an act of charity.
Finally, from a game theoretic perspective offloading the costs of a policy onto those who support said policy is just the obviously correct move. That Democrats have reacted badly and are now throwing a temper-tantrum does not change the fact that Abbott and the wider Texas Legislature has acted well.
Edit: I keep forgetting that there are 2 't's in Abbott
I think Texas does have a right to protect its border, I think that the stream of migrants into the USA over the border in this fashion is not tenable, and I think successive governments have done nothing about it because, to be blunt, it's the rednecks down south that have to handle it, we can just posture about being "in this house we believe" without having to put our money where our mouth is. As I've said before, when it was migrants turning up on their doorsteps, the "in this house" types couldn't get shot of them fast enough.
But as it stands, everybody is being failed. Discussion on this thread about civil war, executing the governor, secession and who knows what else? That's fantasy talk and is not addressing the real, concrete problems. The courts can fight it out over who has more authority - states rights with the federal model meaning each state can govern itself, or the national government over-rides that.
But when it's "we have thousands of people who have to be managed somehow - keep them, send them back, what?" then some kind of action is needed that is not posturing, cosplaying Civil War II, or making presidential campaign hay out of it. I think Abbott's busing the migrants was clever and impactful, but the 'will Biden send in the troops, nationalise the Guard, or what?" speculation isn't doing anything to help right now.
If "no human is illegal", what do you do with everyone who turns up and keeps turning up? Is it fair to ask the same cities to take care of them? Is it okay to let them disseminate throughout the USA with no records or monitoring of them? Is your country going to throw up its hands and say "Okay, if the various countries of South America are failed states, we'll absorb your populations?" I don't think that last can work in any way whatsoever, but as the situation is right now, that's the de facto situation.
It could work if we dropped the welfare state, but that ain't going to happen either.
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They aren't. Venezuela, Haiti, and arguably Mexico are failed states, and Mexico has been adjudicated as safe by US courts. Ecuador and Nicaragua are also deeply unpleasant places to live right now in a way that they weren't before.
But, a migrant from Venezuela to the US border passes through three safe, stable middle income countries(Columbia, Costa Rica, and Panama), then some poor but not unstable countries, then Mexico, then reaches the US border. And statistically few of the migrants are from Mexico; they're mostly from South America. The "nearest safe country" for these people is mostly Columbia or Brazil.
Texas' law allowing state level deportations takes effect in March. In all likelihood Greg Abbott will wave around the past week's events to the troops when he ostentatiously ignores the supreme court's declaration that US v Arizona renders it unconstitutional.
Venezuela and Haiti, I can definitely see. But I used to see Mexico always brought up as "doing decently" for Latin American standards. Why do you say it's arguably a failed state?
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The Arizona case that currently is the most relevant precedent was made on the thinnest of grounds and is ahistorical. And states, traditionally, had the power to reject foreigners, particularly the indigent. Precedents beggining in the 1960s are against this...but the Warren court is notoriously wrong about all things.
Also, the invasion/immigration thing is obviously a question of fact and law to be subject to intense argument and scrutiny if ever litigated. I don't think anyone in the federal government wants to be calling witnesses to the stand about how 5000 people a day crossing the border, more or less unvetted, through cartel territory, is actually technically immigration not an invasion. It looks like an invasion to a large % of the populace. It is an invasion in the practical sense that the people abetting it ( Biden) seek to use it to change the populace of the nation. Its a total landmine for that side. While the Abbot side is simple and good for him, at least until the point where he loses on a technicality (not guaranteed) and then calls Roberts a loser who sucks big donkey dick.
I guess my question here is, if congress passed a law saying that, "The United States shall have open borders. The free entry of persons into the United States shall be presumed to be lawful unless proven otherwise," would that law be unconstitutional under Article 4 section 4? It would be a bit strange for the federal government to not have that power at all, but that would mean that the free movement of large numbers of people across the border isn't inherently an invasion.
I don't know if the best argument for that would be that it violates A4S4. Perhaps better would be to ask which provision of the Constitution authorizes them to pass such a law. A1S8 authorizes them "To establish an uniform Rule of Naturalization", so they could presumably, with the aid of any one state, declare that literally every person on the planet is naturalized, making it illegal for a state gov't to turn them away. Best as I can tell, any direct control over border interactions is much more subtly read in, with the type of reading depending a bit on the theory.
E.g., one might say that the ability to exclude people from entering your territory is inherent in sovereignty. That's a completely plausible way to get to the federal government's ability to enact laws restricting immigration, but in the US, states are also separate sovereigns, so they would presumably also have such rights. In this case, the feds wouldn't have all that much ability to tell the states that they have to have fewer restrictions.
Alternatively, one might frame it as the ability to exclude or to welcome in people being inherent in sovereignty. As such, it would set up a massive clash of the Supremacy Clause with the doctrine of equal sovereignty. Those types of cases tend to turn on the opinions of a small number of Justices feeling out how they read the "structure" of the Constitution, which is always a murky endeavor.
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It probably would be fine, but under Article 1-10 that would not be enforceable against any state utilizing its police powers. The framework, I think, intentionally leaves this power to both sovereigns as the founders presumed each would be corrupt, corruptible, and/or incompetent at any time, and thus they would work to check each other, as appears to be happening with Texas' actions. I think there are indications in the drafting discussions, federalist papers, etc that this is a non-justiciable question.
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So it's on "thin legal ground" and by that you mean it's actually within precedent but you argue that precedent is ahistorical and hence not good law?
I mean, even I disagree with some parts of AZ vs US (in reality, it wasn't a uniform thing, the challenged Arizona law had a bunch of different provisions that I think merit individual analysis w.r.t both the powers of, and actions by, Congress, but I disagree), it remains precedent.
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