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PaperclipPerfector  3mo ago (text post)   26208 thread views

Culture War Roundup for the week of January 22, 2024

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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.

So interestingly enough it appears that some of Abbott's claims have actually been litigated before, amusingly enough by California in the late 90s, but by other states as well (including Texas once before). California v. United States, 104 F.3d 1086, (9th Cir. 1997). While the 9th Circuit did in essence punt on the case, dismissing it for failure to state a 10th Amendment claim, the court at least discussed the Invasion clause argument. While I will try and do some analysis, I also just want to post some excerpts.

In its Complaint, California asserts that the number of permanent illegal residents in California stands at 1.7 million - 5% of the [*1090] state's population - and increases by approximately 125,000 a year. California further asserts that, in the fiscal year this action was initiated, it would spend nearly $ 2.4 billion in providing federally mandated education and health care benefits to illegal aliens and in incarcerating illegal aliens who commit crimes within the State.

Well that sounds like it could have been written by Abbott's press secretary, just swap Texas for California, update the numbers, and bam, you have a ready-made complaint.

California's Complaint consists of eight claims. In Count I of its Complaint, California asserts that [**6] the United States has violated its obligations to protect the State from invasion and to guarantee it a republican form of government under the Invasion and Guarantee Clauses of Article IV of the United States Constitution by failing to stop the intrusion of illegal aliens across the State's borders.

Starting off strong, I like it. So what does the 9th Circuit have to say?

For this Court to determine that the United States has been "invaded" when the political branches have made no such determination would disregard the constitutional duties that are the specific responsibility of other branches of government, and would result in the Court making an ineffective non-judicial policy decision. See Barber v. Hawaii, 42 F.3d 1185, 1199 (9th Cir. 1994) (dismissing an Invasion Clause claim as a nonjusticiable political question). Additionally, even if the issue were properly within the Court's constitutional responsibility, there are no manageable standards to ascertain whether or when an influx of illegal immigrants should be said to constitute an invasion. The Court notes that the other Circuits that have addressed the issues before us in similar suits against the United States have reached the same conclusions that we do. Padavan v. United States, [**10] 82 F.3d 23, 28 (2nd Cir. 1996); Chiles v. United States, 69 F.3d 1094, 1097 (11th Cir. 1995), cert. denied, 134 L. Ed. 2d 777, 116 S. Ct. 1674 (1996); New Jersey v. United States, 91 F.3d 463 (3rd Cir. 1996); Texas v. United States, No. B-94-228 (S.D. Tex. Aug. 7, 1995), appeal pending, No. 95-40721 (5th Cir).

Moreover, California ignores the conclusion set forth by our Founders. In The Federalist No. 43, James Madison referred to the Invasion Clause as affording protection in situations wherein a state is exposed to armed hostility from another political entity. Madison stated that Article IV, ยง 4 serves to protect a state from "foreign hostility" and "ambitious or vindictive enterprises" on the part of other states or foreign nations. The Federalist No. 43 at 293 (Cooke ed. 1961). 6 It was not intended to be used as urged by California.

Unsurprisingly, they dodged the question.

In terms of SCOTUS tea leaf reading, hah. Better scholars than I have tried, and their predictions rarely beat a coinflip. Still, I'll give it a quick and dirty try. Right, so the opinion was written by Judge Merhinge, but Judge Reinhardt joined the opinion, and he was notorious for having his cases overturned by the Supreme Court. That said, despite the 9th Circuit's reputation as having many of their cases overturned by SCOTUS, it's important to remember two things. One, the Supreme Court only takes cases that have at least a chance at being overturned. If everyone agrees the lower court got it right, it's unlikely they'd bother taking the case. Two, by simple volume the 9th Circuit just has more cases than other circuits. They preside over some 20% of the US population, which is almost double that of the next most populous circuit (the 11th, with 11%). Despite this, they have only a slightly above average population per judge, so they can accept more cases. More cases means a higher chance of a controversial decision, which means more of their cases go to SCOTUS, which means they'd have a higher overturn rate. Just adding context. Anyway, Judge Reinhardt was also a highly respected feeder judge, which doesn't happen if you aren't a good jurist.

The 9th Circuit in its opinion engages with the definition of "invasion", and their view of understanding the founders to have included "massive influx of illegal immigrants" under the term "invasion" is not favorable for Abbott. The fact they can cite several precedents on this subject is also not good for Abbott, because it provides the liberal members of the court with jurisprudence, and the conservative members cover to avoid a possible constitutional crisis. Throwing up your hands and saying "not my monkeys not my circus" might not be the courageous thing to do, but it may very well be the legally appropriate thing to do. Saying something is a non-justiciable political question is the Supreme Court's favorite way to punt, and if I was going to put money on it I'd wager that's exactly what they're going to do.

Imagining myself as an adversary of the United States, I could covertly send unarmed soldiers across the open border, have them obtain weapons on the other side, and then attack.

They wouldn't be armed, and the covert nature would prevent the courts from finding that there's foreign hostility.

Now that I think about it, I'd question the competence of foreign adversaries who haven't taken advantage of the open border. They needn't even be setting up sleeper cells, just getting intelligence agents in and out without being documented.

At the scale of two million per year I think the side making the claim that there's no foreign adversaries mixed in should bear the burden of proof. There's not even one guy among the two million who have ties to the militaries of Iran, China, Russia, North Korea?

That is a fully general argument for never letting anyone into the country, ever (also unfalsifiable, since when you don't turn up any foreign agents you can just say they're really sneaky) Far more people enter the country legally every year, and some of them are definitely spies. If Russia or China want to send an agent into the US, they can just... put them on a plane. Give them a bullshit job at the embassy (or just overstay a tourist visa). Being "undocumented" isn't a feature for a spy. It's a hindrance.

Imagining myself as an adversary of the United States, I could covertly send unarmed soldiers across the open border, have them obtain weapons on the other side, and then attack.

Teeth of the Tiger was not Clancy's finest work.

I mean, seriously, why? Going to stage an attack on a military base with a few dozen guys using civilian smalls arms? A terrorist attack to put yourself in the top spot on America's shitlist?

Teeth of the Tiger wasn't written by Tom Clancy, it was ghostwritten and published under his brand along with 50 other books.

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