It Is Not Texas That’s Defying the Law — It’s BidenNational Review By Andrew C. McCarthy 1/25/2024
There is a great deal of moronic commentary accusing the State of Texas of defying the Supreme Court. In point of fact, the Supreme Court did not order Texas to do anything. It vacated an order by the Fifth Circuit that, during the pendency of an ongoing lawsuit between the feds and the state, barred federal authorities from cutting concertina wire that Texas has installed in parts of its 1,254-mile border with Mexico. That is, the Supreme Court (with no opinion, and over the objection of four justices, who also did not write) held that, for now, the lower courts may not prevent the federal authorities from dismantling barriers.
That Supreme Court action did not to direct Texas to do anything. The Court did not presume to tell Texas that it could not take action to protect its territory and exclude intruders — to have done so would have been constitutionally dubious for the reasons Justice Antonin Scalia explained nearly a dozen years ago in his Arizona v. United States opinion — which Governor Gregg Abbott has explicitly relied on, and which should be read, reread, and memorized. (Note: Abbott described the 2012 Scalia opinion as a “dissent”; it actually concurred in part and dissented in part with the Court’s multilayered decision.)
There is no doubt that the federal and state governments both have immigration- and border-enforcement authority. How they work out disputes, particularly under circumstances in which no attempt has been made by Congress in statutory law to prevent the lawful defensive measures Texas has taken, is a political question. This is vertical rather than horizontal separation of powers — collision between federal and state authority rather than presidential and congressional authority — but the dynamic is similar: The law’s preference is for the political officials who answer to the people whose lives are deeply affected to work it out.
Although I disagree with the high Court’s vacating of the Fifth Circuit injunction against DHS (our editorial leans that way, too), I think I understand why it was done (i.e., why Justice Amy Coney Barrett sided with the majority rather than with the other four conservative justices).
Border enforcement is a political duty, not a judicial one. It involves matters of security and diplomacy that are not within the judicial ken. The state government has border-enforcement authority, and the federal government has border-enforcement authority. The actor whose border-enforcement authority is questionable is the Court. I assume the Court was uncomfortable with federal judges’ telling the Biden administration how to carry out border enforcement; I assume the justices would be equally reluctant to endorse a court’s telling Texas how to do it.
More:
https://www.nationalreview.com/corner/it-is-not-texas-thats-defying-the-law-its-biden/
