In a short order issued Monday, the U.S. Supreme Court ruled 5-4 to overturn an injunction that had prevented Customs and Border Protection from removing concertina wire set by Texas Gov. Greg Abbott as part of his long-running effort to build a parallel border enforcement infrastructure. That’s good news.
The order comes in response to an emergency motion, so it doesn’t feature the lengthy legal reasoning that is typical of full decisions. We’re left to speculate as to the majority’s reasoning, though it’s not difficult to imagine. The court more than a century ago clarified that regulating immigration is the province of the federal government, reasoning quite sensibly that it would be chaos if every state tried to enact its own policies and restrictions.
In the time since, Congress has been the entity writing immigration laws and the president the one enforcing them, during more restrictive periods and less. Conservatives seemed to understand this principle well enough during the years that Donald Trump made it his mission to reformulate the immigration system around his hyper-restrictive goals and when they complain, falsely, that local sanctuary ordinances are some sort of interference in federal authorities.
Much harder to tease out are the objections of Justices Clarence Thomas, Sam Alito, Neil Gorsuch and Brett Kavanaugh, at least if you assume that their qualms are legal and not political in nature. On what authority does Texas get to put up border barriers and prevent federal agents from removing them? There is no real argument that the concertina wire has one purpose and one purpose only: to act as Texas’ own border regulation, and, in logical consequence, supplant federal authority.
This isn’t some kind of legal dilemma that exists in the realm of law school hypotheticals. Real people are being put at risk by Abbott’s schemes. People have died in what seems to be a pretty clear direct result of his troops’ refusal to allow Border Patrol to conduct rescue operations. More people will certainly die if he’s allowed to keep at it, and the Biden administration has been bafflingly lenient on the power-hungry governor.
It’s worth emphasizing that while the emergency application was filed by the Biden administration, this lawsuit was not brought by the feds in the first place. It was brought by Texas Attorney General (and current criminal defendant) Ken Paxton on behalf of the state, which was itself attempting to stop federal agents from cutting through the wire while going about their jobs.
It’s good that the latter didn’t allow Abbott’s sadistic obstacles to get in the way, but why wasn’t the suit brought by the feds, like the case to force the governor to remove his dangerous floating bollards? In that instance, as this one, a district judge ruled the obvious only to be overturned by an appeals court, whose judges should perhaps take some remedial law classes before they do more damage.
Why doesn’t the Biden administration act outside the scope of the courts themselves? It’s a bad precedent for what are legally federal troops — which national guard units are, even if temporarily at the direction of governors — to be allowed to interfere in federal affairs. The commander in chief should reassert that role and remind Abbott who is in charge.
