CNN Politics Q & A Wolf Blitzer and CNN’s Supreme Court analyst Stephen Vladeck, a law professor at the University of Texas at Austin…..with deep dives into the action’s by Texas Governor Abbott in relation to the border….
Abbott, who has had extensive experience as a lawyer, is gaming the legal system….
The razor wire issue is playing out as part of a larger standoff in which Abbott argues by not acting more forcefully at the border, the federal government has violated its responsibility to protect the state from “invasion.”
Is this a governor essentially ignoring the Supreme Court? Why is the federal government in charge of border policy in the first place? I went to CNN’s Supreme Court analyst Stephen Vladeck, a law professor at the University of Texas at Austin,with those questions. Our conversation, conducted by email, is below.
Abbott is not ignoring the Supreme Court
WOLF: How does Abbott justify essentially ignoring the Supreme Court?
VLADECK: It’s really important to stress that two different things are true: First, Abbott is not “essentially ignoring” the Supreme Court. Second, he is interfering with federal authority to a degree we haven’t seen from state officials since the desegregation cases of the 1950s and 1960s.
With regard to the court, all that the justices did on Monday was to vacate a lower-court injunction, which had itself prohibited federal officials from cutting or otherwise removing razor wire that Texas officials have placed along or near the US-Mexico border.
Nothing in Monday’s unexplained order stops Abbott from doing anything; it just means the federal government can’t be sanctioned by courts if it takes steps to remove those obstacles.
Instead, the real issue here is that Abbott is deliberately impeding the ability of federal officials to act in and around Eagle Pass – in a way that isn’t in outright defiance of the Supreme Court (yet), but that is inconsistent with the supremacy of federal law.
That’s why Abbott is trying to invoke a claim that the federal Constitution itself authorizes what he’s doing, because if the Constitution doesn’t empower him to take these steps, then “preemption” (the idea that federal statutes and federal policies promulgated pursuant to those statutes override contrary state laws and policies) should be the whole ballgame here.
Abbott misuses the Constitution to declare an ‘invasion’
WOLF: Abbott has tried to justify his actions at the border by declaring an “invasion” in Texas. That language has been used for political reasons by Republican lawmakers. But it also has legal importance in the Constitution. Is the Supreme Court likely to agree with him?
VLADECK: No. The actual provision Abbott is purporting to rely on is part of Article I, § 10, which limits states’ powers. And it prohibits states from “engag[ing] in war” without congressional consent “unless actually invaded.”
The point of this provision – adopted at a time when we had a tiny federal army, Congress was usually out of session and travel took weeks – was to allow states to defend themselves from foreign invaders until federal authorities arrived.
It was never understood, and has never been understood, to allow states to interfere with or otherwise override federal law enforcement – even if it’s an “invasion” (which, it should be said, this isn’t).
Were it otherwise, states could use their own claim of being “invaded” as a justification to resist whatever federal laws and policies that they didn’t like – a modern-day version of the “nullification” arguments that didn’t survive the Civil War.
Abbott does have a point on one thing
WOLF: Does Abbott have a point about the lack of clarity in the court’s ruling? When we last we spoke, it was about your own research on the shadow docket and the problem of the court wielding power without writing decisions.
VLADECK: Yes. One of the real issues with the Supreme Court handing down such significant rulings without explanation, as I write about in “The Shadow Docket,” is the lack of guidance it provides to government officials, lower courts and the public about what is and what is not allowed going forward.
Unfortunately, Monday’s ruling is a perfect example. Abbott is, quite obviously, provoking a fight over how far states can go to supplant, and not just supplement, federal law enforcement authority.
Until and unless the Supreme Court conclusively answers that question, we’re going to be in this limbo – with the unseemly prospect of a physical standoff between state and federal officials in Texas while that question goes unanswered.
Who is supposed to be in charge of immigration policy?
WOLF: Why is it that immigration policy is set aside for the federal government?
VLADECK: I don’t think it’s quite right to say that “immigration policy [is] set aside for the federal government.” The Constitution gives the federal government the power to regulate naturalization, which the Supreme Court has long interpreted to also include a power to regulate immigration and border security.
But the Constitution leaves the extent of federal involvement almost entirely up to Congress…..
VLADECK: The reality, for better or worse, is that the Supreme Court has historically shown broad deference to executive branch immigration policies without regard to whether those policies were set by Democratic or Republican presidents.