No, Texas did not “challenge” the Supreme Court

There’s a bit of hyperbole about immigration policy and the southern border these days. In one prominent example, Texas Governor Greg Abbott suggests that there is an “invasion” of illegal immigrants that justifies state action under the Constitution. From a constitutional point of view this is not true.

But it’s not just politicians who make false and hyperbolic claims. Journalists AND presumed even experts are doing it, like those who argue that Texas is “defying” the Supreme Court by continuing to install power cables on state and private lands near the Mexican border. According to these reports, because the Supreme Court lifted an injunction preventing the federal government from removing electrical wires where necessary for immigration enforcement activities, Texas is making a mockery of the Supreme Court by continuing to place electrical wires on state and private properties. This is also not true.

In the case in question, Department of Homeland Security against Texas, Texas is suing the federal government, in tort, for the destruction of state property (cable barriers and the like). The district court generally concluded that Texas was right on the facts, but wrong on the law, because Texas could not seek monetary damages from the federal government due to sovereign immunity. The U.S. Court of Appeals for the Fifth Circuit has enjoined the federal government from taking further action to remove or destroy Type C barriers on state and private lands, except where such actions are necessary to address a medical emergency, awaiting further proceedings. Among other things, the Fifth Circuit concluded that Texas would likely demonstrate that the federal government had waived its sovereign immunity under 5 USC Section 702.

All the Supreme Court did (in that order) was strike down this injunction, probably because it concluded that the federal government was likely to prevail on grounds of sovereign immunity. He has not spoken out – or rather, he hasn’t been called upon to speak out – on the legality of everything Texas is doing. Nothing in what the Supreme Court did told Texas to take or refrain from any action.

But don’t just take my word for it. Here’s what Professor Steve Vladeck (not a fan of the Abbott administration) wrote in his “One First” substack newsletter:

Perhaps the most important thing to say about the order is how little it actually solved (someone should really write a book about why this is a bad thing): By overturning the Fifth Circuit’s injunction, the Court effectively protected the federal government from sanctions for contempt. if he continues to remove the barbed wire that Texas has placed along the border – and nothing more. Therefore, nothing Texas did or said over the course of the week “challenged” the Court’s ruling; just like President Jefferson and Marbury v. Madisonthere was no real way for Abbott I could challenge such a modest sentence because it wasn’t directed at Texas in the first place. Instead, as explained in more detail below, the real legal disputes between Texas and the federal government at the border remain very open and unresolved (and will likely only escalate further, given the politics of the moment).

As Vladeck notes, there are other pending cases that call into question the legality of actions taken by Texas that conflict with the Biden administration’s immigration enforcement choices. One such case challenges a new immigration law in Texas that seems highly suspect Arizona vs. United States, a 5-4 decision in 2012 in which the Court concluded that many state actions to enforce federal immigration laws are preempted. If the courts rule against Texas in these cases – and I suspect they might – and Texas doesn’t back down, then it will be appropriate to sue the Lone Star state for defying the Supreme Court. But that’s not what happened yet, and it’s irresponsible on the part of journalists and others who should know better.

Governor Abbott may be reckless and dismissive, especially with his rhetoric, but he is no Judge Aiken (at least not yet).

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