ROGER FITCH ESQ • MONDAY, JANUARY 29, 2024
The cowboys of Texas ... Asserting control over immigration ... Operation Lone Star ... Confederate theory of secession is alive and kicking ... Usurping federal powers ... Trump judges to the rescue ... Wild defence claims in election conspiracy case ... Roger Fitch reports from Washington
Texas has always asserted its enduring sovereignty, claiming to be the only state that was previously a republic (Vermont disagrees). The state bolted from the Union once: it was almost the first to secede in 1861, and in 1870 it was one of the last readmitted.
Why? It was among the last to ratify the 15th amendment guaranteeing the right of "males" to vote without racial discrimination.
In fact, the original admission of Texas in 1846 was so contentious and unpopular that, alone among the states, it was done by joint congressional resolution. Texas reserved the right to subdivide into five states, which, happily, never occurred; 108 US senators, ten of them Texans, doesn't bear thinking about.
When British author John Bainbridge's seminal book about Texas, The Super-Americans, appeared in 1961, the state was still ruled by the same conservative Democrats (today's Republicans) who defended the "White Primary" (disallowed in Smith v Allwright, 1944) and segregated state universities (struck down in Sweatt v Painter, 1950).
The Bainbridge paperback bore the cover blurb, "an incipient fascist state". Perhaps incipient no more: the majority-minority Texas has been tightly controlled by white-minority Republicans for a generation. Since George Bush's 1994 election as governor, most state-wide officers (governor, lieutenant governor, attorney-general, members of the supreme court and court of criminal appeals) have been Republicans.
Since the Republicans' unprecedented 2003 do-over of the previous (Democrat) legislature's 2000 census-based redistricting, the party's unshakeable gerrymanders have guaranteed perpetual Republican control of the legislature and state congressional delegation.
In 2019 (in Rucho v Common Cause), a Republican-dominated US supreme court stopped all federal judicial review of partisan gerrymanders at the moment when most gerrymanders favoured Republicans.
With permanent government assured, Texas Republicans have taken increasingly bold stances against the federal government, and with Donald Trump's extreme Federalist Society judges now in place at all levels of the federal judiciary, the state is reasserting its independence, bringing test cases of Texas's purported sovereign supremacy in sympathetic federal courts.
It's the 1830s and "Nullification" again, with Texas standing-in for South Carolina. Indeed, 24 of the 25 Republican governors have piled on with what is essentially the Confederate Theory of Secession.
Operation Lone Star appropriates immigration control, though states have no right or power to participate in immigration policy, a federal matter. No matter, Texas found a friend in Drew Tipton, the district judge alternating with fellow Texan Matthew Kacsmaryk as worst Trump-appointed judge.
Texas governor Greg Abbott has also attacked immigration law in Kacsmaryk's court, where ultra vires interventions in federal immigration policies have succeeded.
Abbott: all hat, no cow
An early Texas victory reached the supreme court, which declined to stay (pending appeal) a Kaczmaryk ruling that Biden could be forced to reimpose a discarded Trump remain-in-Mexico policy (now lapsed) that the Mexican government might refuse to implement.
Wrongly claiming that refugees can only enter the US at state-selected border bridges, Governor Abbott claimed authority over the entire border, placing buoys to deter migrants at shallow river crossings, e.g, near the International Bridge at Eagle Pass.
When the US sued over "anti-migrant barriers", a federal judge ordered the state to remove the buoys, a decision upheld by a Fifth circuit panel, but the Texas AG, criminally-indicted Ken Paxton, is getting an en banc rehearing before the Fifth circuit, the most conservative (12 of 17 judges are Republican appointees).
The buoys remained, and Texas began rolling out razor wire, including at the state's land border with New Mexico near El Paso. The state also began booby-trapping likely river crossings.
When the federal government removed the river wire as obstructing navigation and access to migrants, AG Paxton sued, claiming the state's razor wire at Eagle Pass had been "illegally" cut by the Biden Administration.
Paxton's laughable legal theory, trespass against chattels, was rejected, and the district court ruled for the US. On appeal, a Trump-tainted Fifth circuit panel accepted Texas's doctored videos of purported federal inaction and granted an injunction preventing the US cutting the wire.
Lone Star border control
Texas then wired off more of the border, with the Texas State Guard blocking the US Border Patrol and federal law enforcement, including US military. The state's exclusion of the US contributed to the death of three migrants, and there was a showdown with the Texas Military Forces, who ostensibly act under federal authority.
The Department of Homeland Security sent a polite letter to Paxton, giving him until January 17 to cease and desist blocking US Border Patrol's access to the river; Paxton's reply was puerile and insolent (press release here).
The supreme court ruled 5-4 for the Biden administration, but Texas continues to flout the law, more here. Worse, the legislature's Senate Bill 4 has taken effect, creating a parallel immigration system where state law enforcement agencies can arrest and deport undocumented immigrants within the state's borders. The New Republic and Steve Vladeck have more.
Clearly, a state law purporting to authorise arrest of "illegal" immigrants is blatantly unconstitutional, usurping federal powers and arrogating to the state the power to issue international deportation orders. More here on Senate Bill 4.
El Paso County and immigrant groups have filed suit in federal court, seeking an injunction. Governor Abbott cannot have legal advice (other than his devious AG's) that the state can lawfully arrest, imprison and deport people; some are entitled to refugee status or parole (e.g, the Republican-hated "humanitarian parole"), others may be legal residents or even American citizens.
Even so, false arrests have already begun; the many lawsuits that follow will prove costly for the state's employees and taxpayers.
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The Washington Monthly has a Trump coup trial primer for Special Counsel Jack Smith's election conspiracy case, the "highest-level criminal trial in America" since 1807, when Thomas Jefferson's former VP Aaron Burr was acquitted of treason. This time, jury tempering and witness intimidation are real possibilities.
VP Burr ... Trump's criminal trial will be bigger
Trump's coup trial lawyers are pressing for wild and irrational defence claims to be heard by the DC jury, pursuing a laughable, nonsensical and ultimately idiotic argument that he can't be prosecuted for any crimes committed when he was president, arguments that are incredible, inconsistent and incoherent.
In due course, the crybully Trump appeared at the DC Circuit, where his lawyers artlessly argued that he could even assassinate rivals while president, and get away with it, unless previously tried and convicted by the senate, something a mere 34 Republican senators can prevent.
Trump's argument during his second impeachment in 2021 was just the reverse: that he should be charged, if at all, in a criminal court. Professor Dorf has more.
Meanwhile, in a shameless election year stunt, Trump's drumhead congress wants to impeach President Biden for what he did before he took office.
