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  • Writer's pictureThe San Juan Daily Star

Governor defiance tries to usurp Washington’s role

By David Firestone

In mid-December, just one day after Texas Gov. Greg Abbott signed into law a radical new immigration bill, immigrant rights groups challenged it in court as ridiculously unconstitutional. The groups felt they had no choice, but they did exactly what Texas was counting on, because the point of the law isn’t simply how outrageous it is; it’s about the fight it will cause.

And nothing defines Abbott’s governorship more than his endless fights against Washington, almost always in a way that hurts the poor, the stateless and those who live outside the boundaries of his state’s Republican culture.

The new law gives Texas the power to take over immigration enforcement from the federal government. It’s now a state crime to cross from Mexico to Texas at an unauthorized crossing; state police are empowered to arrest migrants, and state judges are empowered to order them to leave the country. Forget all those niceties about asylum policy; if Texas doesn’t want you in the state, it can kick you back over the border.

None of this is legal, of course. Only the federal government can set immigration policy and enforce border security. Only the federal government can arrest migrants for immigration violations or deport them. The Supreme Court made that clear in 2012 in a decision that prohibited Arizona from arresting people for being in the country without authorization.

“The government of the United States has broad, undoubted power over the subject of immigration and the status of aliens,” Justice Anthony Kennedy wrote for the court’s majority, citing the government’s constitutional power to regulate naturalization and control relations with foreign nations. “Arizona may have understandable frustrations with the problems caused by illegal immigration,” the decision says, “but the state may not pursue policies that undermine federal law.”

Texas is well aware that it is deliberately defying the Arizona decision, but it also knows that Mississippi achieved a historic win for conservatives when it defied settled law by prohibiting most abortions after 15 weeks, setting the stage for the Supreme Court to then overturn Roe v. Wade in Dobbs v. Jackson Women’s Health Organization in 2022. The court has changed significantly since the Arizona case, largely thanks to Donald Trump, and Abbott is openly hoping the more conservative majority will discard the Arizona precedent, just as it did abortion rights.

“We think that Texas already has the constitutional authority to do this,” he said at the signing, imagining a constitutional right that doesn’t exist, “but we also welcome a Supreme Court decision that would overturn the precedent set in the Arizona case.” (In his dissent in that case, Justice Antonin Scalia laid out a path for doing so, saying he saw nothing wrong with a state exercising sovereignty over its borders and openly expressing his political feelings by saying the lack of federal enforcement would leave the states “helpless before those evil effects of illegal immigration.”)

Abbott has been doing this sort of thing since he was the Texas attorney general and found his mission in life by taking the Obama administration to court. The Texas Tribune published a helpful list of his 31 lawsuits against Washington, which included challenges to the Environmental Protection Agency on pollution rules, to an equal-employment rule that prohibited discrimination against felons, to the constitutionality of “Obamacare” and to rules requiring religious employers to pay for contraception. He had a mixed record, winning, losing and withdrawing suits, but victory was just a byproduct of the real point: battling the federal government at every step.

“I go into the office, I sue the federal government, and then I go home,” he said in 2012, describing his daily routine as attorney general. That kind of resistance to authority has always been a Texas thing, since copied by many other Republican imitators, but legal experts said no other state came close to Texas’ volume of lawsuits. Abbott has made it the cottage industry of Texas government, and he has never been shy about acknowledging how many millions these legal actions cost the state.

“Defending the constitutional principles that have made the United States truly exceptional: That’s priceless,” he wrote in 2012.

As governor, Abbott found a new way to parade his insolence. Rather than grind out lawsuits against the Biden administration, he can now do outrageous things and wait for the government to sue him. In some ways, that’s even better, because he can create facts on the ground and wait to see if a court will stop him.

As part of Operation Lone Star, his National Guard put up more than 20 miles of razor wire along the Mexican border near El Paso, and he expressed no concern when pictures turned up of injured border crossers. A federal appeals court said in December that the U.S. Border Patrol couldn’t cut the wire while the legal action plays out. Earlier in the month, after the Justice Department sued Texas for stringing a large barrier of buoys in the Rio Grande, a federal appeals court ordered the state to remove it.

Abbott, who said he was allowed to take such actions in the case of an “invasion,” vowed to take the buoy case to the Supreme Court, following his usual pattern. This is how the far right does business these days: Push all legal limits, hope for a bailout by Trump appointees to the high court and celebrate the lost cause if they should lose.

On Thursday, as if on cue for this tiresome drama, the governor got the best possible holiday gift from the Biden administration: a letter from the Justice Department, warning that if Texas does not stop enforcing the new law by Jan. 3, “the United States will pursue all appropriate legal remedies to ensure that Texas does not interfere with the functions of the federal government.” The Justice Department really had no choice; it could not sit by idly while a state usurped one of the federal government’s essential roles and violated the constitutional principle of supremacy.

Nonetheless, Abbott, who has made a dubious career out of interfering with the functions of the federal government, clearly anticipated the letter and immediately issued a statement saying he had no intention of complying. And if pictures start to emerge next year of exhausted migrants and their children rounded up by state troopers and treated to Texas justice, his cynical victory will be complete.

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