Supreme Court does not want to mess with Texas

In an ideological 6-3 split, U.S. Supreme Court conservatives had their way in allowing Texas to continue to arrest and deport illegal aliens while the Texas law is being challenged in lower courts.

Is the Supreme Court preparing to endorse states’ rights?

It is a significant ruling because, until now, immigration enforcement has been thought of as a responsibility of the federal government only. Texas tried to create a loophole with S.B.4, which makes illegal entry a state law, which it can enforce.

[An appeals court immediately blocked the Supreme Court order in light of an appeals court hearing Wednesday.]

The Left was predictably outraged that a state would enforce immigration law, because it has used a “hands off” philosophy to justify Sanctuary Cities non cooperation with ICE.  (There is a difference between nonenforcement and non cooperation. No one asks Sanctuary Cities to enforce the law. The argument is those cities’ noncooperation hinders enforcement.)

The Mexican government, in a huff, said it would not accept the return of its nationals because the law encourages “the separation of families, discrimination, and racial profiling.” That opinion is like a tortilla with no flour. S.B.4 does not target Mexicans, it targets illegal border crossers. Is Mexico saying all border jumpers are Mexican? Shame, shame on them.

Mexico blows hot and cold on cooperating with its northern neighbor and has suborned U.S. law by issuing travel papers to serve as “documents.” However, under Mexican law, “All foreigners, regardless of their nationality, are required to present a valid and not expired passport or travel document when entering Mexico.”

Passport, si.

Is that racist, too?

One illustration of the Supreme Court’s reversal: in 2012, it knocked down most of an Arizona law that sought to do the same thing as Texas’ law.

In each case, the state said it acted because the federal government did not. Is the Supreme Court preparing the ground for a validation of states’ rights?

The Biden Administration, which is responsible for what it now admits is a crisis at the border, fights Texas’ attempt to secure the border, instead of thanking it. That is very curious and makes one wonder how serious Biden is about fixing our sieve border.

Speaking for the Administration, spokeswoman Karine Jean-Pierre cranked out the creaky trope that the border enforcement will “make communities in Texas less safe.” In the same way locking up rapists makes women less safe?

Let Texas decide that. Don’t mess with Texas, as they say.

While immigration enforcement is a federal responsibility, I have never understood why states could not voluntarily enforce that law, as they do arson, bank robbery, counterfeiting, and smuggling, which are federal crimes. 

They are state crimes, too, you say?

So is illegal entry, under Texas’ S.B.4.

33 thoughts on “Supreme Court does not want to mess with Texas”

  1. It is about time somebody let cops do their job! The invasion of the United States has to stop, too many people have entered the country with no intention of doing anything ,except criminal activities. It’s time to put a stop to it.

  2. This is a case of the Supremacy Clause of Government versus States Rights. The Supreme Court will have to decide this specific issue concerning illegal immigration. Slavery was the cause of the civil war. However, the Southern States argued it was about States ability to make and enforce their own laws. Illegal immigration is endangering the residents of Texas and Arizona in various ways. Does protecting our citizens supersede the Supremacy Clause of Government. We will see.

  3. Amazing. Texas is trying to protect its citizens because the federal government refuses to do so. And that’s wrong? Talk about turning the law on its head. This isn’t about a right-wing or left-wing court ruling, this is about the United States as a whole, and our country is being invaded while the feckless Democrats sit back and make the crisis a political fight. Let us hope Texas prevails and we can begin to put an end to the invasion of illegal aliens.

  4. The Supremes worked late into the night to reach this decision, pausing only to pee and order takeout from a Tex-Mex restaurant in D.C.—to get a flavor for the argument.

  5. What a disgrace that the Biden administration is suing Texas for doing the job the federal government should be doing. it is treasonous. Why would anyone in their right mind vote for him.

  6. So interesting that States Rights comes right back at us, just as our Southern States argued before, rightly or wrongly, then. (It has long seemed that those states would have seen the light and ended slavery, too, by their own awakening to its evils. Had the North been wiser and less trigger happy, 600,000 soldiers and citizens would not have been killed fighting our, probably, needless civil war.)

    It seems clear here and now, (or better three years ago,) that Biden’s Federal Government’s exceedingly stupid and perhaps, treasonous open borders policy, has to be superseded by States Rights for the safety of our whole country. Biden’s policy must be overruled to protect our country. That is a sound, solid and appropriate application of States Rights.

  7. I can’t help but think that our open border situation is being done on purpose. Replacement theory? Racking up Electoral votes in certain areas? Self-hatred for being an American? It’s something other than simple incompetence. The evidence is before us every day. Someone, or some group, is out to totally destroy our economy, our culture, our history and our way of life. It has been going on steadily and consistently for so long that I think it’s too late to stop it.

  8. Hold your horses everyone. This was a procedural ruling. Essentially the Supreme Court is saying “don’t come running to us” on everything. The legal press, along with quite a few members of the Court itself, have been criticizing the Supreme Court’s use of its “shadow docket.” That is, ruling on cases that aren’t really before it, except on “emergency” petitions for a stay (or in this case lifting the stay) of this or that lower court ruling that hasn’t been ruled on by the appellate courts.

    The main objection in this case was that this was an “administrative stay” not an actual ruling that they were asked to overrule. The Court was saying “at least give us a set of legal reasons we can review, instead of something this tenuous and ephemeral.” As Amy Comey Barrett wrote: “So far as I know, this Court has never reviewed the decision of a court of appeals to enter – or not enter – an administrative stay,”

    It also contained a veiled threat, noting that administrative stays should only last for very short periods, until an actual stay is decided–and, if that didn’t happen, the Court could revisit the issue soon. As one commenter noted, the Supreme Court was saying it is not the appellate courts’ “housekeeper.” In other words, “Don’t make me come back there, fix it yourselves.” The dissenters were saying “who cares, this is bad, lets fix it.”

    Well, as Stu notes, the appellate court did exactly what the Supreme Court was requested to do, only a few hours later. The threat worked. And this is the Fifth Circuit, the most conservative appellate court in the country. So hold the champagne, as you’re probably destined to be disappointed.

    Texas is going to lose. They knew they were going to lose. The whole thing was just performative, and no one would be more surprised (and probably disappointed) than them if they actually won. Besides 175 years of unbroken Supreme Court precedent that only the Federal government can regulate immigration, there’s quite a few poison pills in the law to make sure it is overturned.

    Stu says it doesn’t violate the Supremacy Clause. But the law specifically directs Texas judges to ignore federal immigration status. On your way to your asylum hearing? Too bad you have to miss it, you are deported. Seeking withholding of removal, or the protection of the Convention Against Torture–too bad–the feds might let you stay, but we won’t. Even DACA is only an “affirmative defense” which means that you can be jailed until you prove you are in the program. In other words, “sure, sure, tell it to the judge.”

    But the big thing is that Federal law says: a “proceeding under this section shall be the sole and exclusive procedure for determining whether a [noncitizen]… may be removed from the United States.” 8 U.S.C. § 1229a(a)(3), for those who care. It’s the Immigration and Naturalization Act. It doesn’t say “sole and exclusive except for Texas courts.” There is no way around this. It is a direct violation of Federal Law. Even the dissenters in US v. Arizona–who thought it was ok to make illegal immigration a state crime–said, hey, its not like Arizona is trying to deport anyone.

    But the real giveaway is the political arguments dressed up as legal ones. Texas argues that the border problem is an “invasion” –not metaphorically, but within the meaning of the Constitution, allowing it to engage in “war” without federal authorization.

    Well, if the Supreme Court says there’s an “invasion” as the word is used in the Constitution, then Joe Biden can suspend the Writ of Habeas Corpus and arrest anyone and hold them indefinitely without trial until the “invasion” is over. Be careful what you wish for. Texas also argues that Mexico is a “failed narco-state.” Maybe so. But, under the constitution, do we want Texas, or even the Supreme Court to conduct our foreign relations by handing out such official labels?

    And, as I said, Texas would be “disappointed” if the law was upheld and I mean it. One of the plaintiffs seeking to stop the law was the City of El Paso. Why? Because, the additional annual arrests (estimated at 8,000) in that town would cost them a mint in terms additional jail space, more officers, a crowded court system and providing public defenders for all the new state criminals. A big problem with the border we have now, is that we don’t have enough immigration judges, we don’t have enough detention facilities, and we don’t have enough officers. (And Trump likes it like that, so long as he’s not in the White House).

    The border bill Trump sunk provided $20 billion in border security. Actually fine with me if Texas wants to pick up that tab. Their non-federally funded spending only totaled $51.8 billion ($148B including federal grants/funding), so, what’s a 40% increase? With the Texas law, the feds wouldn’t need the additional 12,000 detention beds they wanted. The Border Patrol can just drop excess illegals at the nearest county sheriff’s office.

    Then they could all demand jury trials and Texas could pay for that too. If they run out of jail space, then Abbott, like Mayorkas, can be impeached for not detaining every illegal. (Or, I suppose, they could start letting murderers and rapists out instead).

    Don’t get me wrong. I’d be fine with the law, except for the fact that it’s wildly unconstitutional. I’d love it if Texas spent billions on border security, so the rest of us don’t have to. But, unfortunately, if the Biden administration didn’t sue to stop the law, he’d be in breach of his oath of office to protect and defend the Constitution.

    I recommend reading the district court opinion blocking the law at the Supreme Court docket.

    You need to page down past the stay orders to get to the opinion. The writer, Judge Ezra, is a former marine, and appointed by Ronald Reagan.

    1. Minor point: I don’t recall saying S.B.4 did not violate the Supremacy Clause. I may have ASKED if it did, when it mimics federal law. I did not read S.B.4, I went by press accounts. Shame on me.
      IF the majority is strict constructionists, Texas will probably lose. You say it wants to. I say you can’t know that.
      You say it would cost Texas money. It has spent MILLIONS “deporting’ illegals to Sanctuary Cities. I think Abbott would pay the bill.
      Just my opinion.

      1. Stu: I apologize that I misunderstood you. I was looking at your response to Aloysius Martin on the Supremacy Clause.

        It may be Texas doesn’t “want” to lose, but it is hard to believe that they didn’t “expect” to lose.

        Pew Research puts the number of illegals in Texas at 1.6 MILLION people. Currently, Texas has a prison population of 136,000, and a county jail population of 70,000. That costs them $3.5 billion a year. If they arrest only 10% of the illegal population, that’s 160,000 more cells. There is no plausible way that if they actually expected the law to go into effect that it would not have been coupled it with a big package of enforcement dollars, and court and prison expansion.

        As I noted, that’s why El Paso sued: the city said “We can’t afford to do this.” The Dallas, San Antonio, and Harris County jails are already overcrowded or near capacity. Lubbock County didn’t sue, but their jail facilities are so overcrowded that they are spending a million bucks a year to house folks in other counties. Most of the jail population is in pre-trial detention and because of the clogged courts, the median stay in Harris County is 103 days–which is why that county has spent $25 million housing detainees elsewhere. [Stu, I’ll email you the links if you want].

        Millions on busing is nothing compared to the cost of housing and providing medical care to the people bused for months or years–the whole purpose of the busing was to impose those much higher costs elsewhere. Arresting migrants embraces those costs.

        It’s a bit much to assume that Abbott and the legislature were unaware of the situation, so I think the most charitable interpretation is that they said, “Odds are that this law will be struck down. We’ll only worry about the problem in the very unlikely event that we have to. In the meantime, it’s great for us politically.”

        I call that performative.
        One question: Can I now say that I’m more cynical about politics than you are?

        1. I see why you say Texas doesn’t want to win. Because of the cost. But if I understand what YOU say about S.B.4, there will be no jail costs because Texas will send them right back across the border without a hearing. (I “think” that can happen even now with Mexicans.)
          And, yes, you may be more cynical on certain issues. Here:🏅 😁

          1. Not quite like that. Nobody can “just” be deported under the Texas law. They have to arrest them first. So that’s paying law enforcement to chase illegals instead of other criminals. They are in jail until they get a probable cause hearing before a magistrate at which time the state will drop the charges if they agree to an order of deportation.

            So that’s jail time, court time, and Texas has to give them a public defender, unless they have money for a private attorney. There probably will also have a paid translator to provide due process.

            Of course the “agreed” deportation means they are accompanied by an officer to the border and sent across. There is no provision for what happens if Mexico refuses to let them cross.

            [Another problem is that Texas returns “deportees” to the country they entered from, i.e. Mexico, not their country of origin (which is how the feds do it).

            Mexico has no more obligation to let foreigners in than we do, else they could “deport” Venezuelans, Guatemalans, Caribbeans etc who entered Mexico illegally to the U.S.. They’d jump at the chance.

            Similarly, if, say, Mexican illegals sneak into Canada from the US, Canada can’t force us to take them back. They have to deport them to Mexico, or another country that signs a deal to take them in.

            These problems are one of the reasons for the law’s unconstitutionality: it requires Texas to cut an immigration deal with Mexico, independent of the feds]

            If the defendant doesn’t agree to a deportation sentence, they go back to jail to await trial (though I suppose bail would be available). They could then ask for a jury trial and Texas has to pay for that. If they get convicted, they serve 2 years + they get a deportation order at the end of that, and then if they refuse to cross the border, they get sent back to prison for 20 years–without parole.

            For a lot of the prosecutions, the law requires JAIL FIRST, DEPORTATION AFTERWARD. Illegals are not eligible for a “voluntary” order of deportation at the magistrate hearing stage if they already were returned once by the feds or Texas. Then, they’ve got to be tried and convicted without a deportation option. So, the multiple-border crossers, i.e. your worst offenders, have to be tried and sent to jail and then deported.

            Of course, illegal entry is also a federal crime, but–you are right–it’s cheaper to just deport them with an immigration judge.

            A 2019 study of the costs of federal prosecution for illegal entry and illegal re-entry in the city of Tuscon, Arizona alone, set it at $62 million. (True, it was done by a pro-migrant group, but its methodology looks reasonable to me, and even you if drop it to $50 million, that’s still a ton of money)

            So, no. This law doesn’t have the Texas Rangers catching someone, and tossing him right back across the border. Since Title 42 ended, even the feds can’t do that. It may be a bad idea, but it’s the law. That’s why I was so PO’d when Trump killed the bill that would have given Biden the authority and resources to do that.

          2. The way I imagine Texas enforcement is NOT rounding up people who “look” different, but nabbing people crossing the Rio Grande. That is where Abbott is currently amassing his forces.
            The AZ law specified status could be demanded ONLY if the person was stopped for a DIFFERENT offense. While characterized as “show me your papers,” that would happen only IF the person were stopped for, say, a traffic offense, and law enforcement would routinely ask for ID.
            The issues you raise about money and sovereignty are valid and well founded. As you told me, if TX law does not conform with US law, USSC will probably knock it down.

    2. Certainly is an interesting explanation of the overly complicated laws. I suppose you are a lawyer, Tom?
      Does not help at all, however, solving the problem. The problem that Biden made far worse all by himself on his first day in office, and he still, according to reports, denies that allowing millions of unknowns from 180 countries into our country is a problem, and quite possibly a serious threat to all of us as many of them have been bused to and released to our interior.
      So who will do what has to be done, with or without, the various legal interpretations?

      1. I am a lawyer, and despite general impressions to the contrary, that means that I am in the business of solving problems. As JP Morgan famously said, “Well, I don’t know as I want a lawyer to tell me what I cannot do. I hire him to tell how to do what I want to do.”

        Biden screwed up. The bipartisan border bill that Biden backed and Trump killed would have gone a long way toward fixing that. So, now, at least in my book, Trump is the new true border villain. He knew better (the bill gave Biden the same stuff Trump said was needed in 2019), but decided to throw the country under the bus to improve his chances of getting elected. I think it is a very bad idea to encourage and reward that type of behavior, and dangerous to have someone like that as president.

        The Constitution tells us how to do the things we want to do. It’s the “social contract” where “we the people” agreed on how to organize things. You’re either in or you’re out–or you can try to get the rest of us to change the rules by amendment. Yeah, contracts sometimes need to be analyzed, and can seem complicated and technical.

        Putting that aside, in this case, the point is, as someone once said, “Either you’ve got a country or you don’t.” The US and the US alone makes our foreign policy and regulates commerce with foreign nations. We can’t have the states each have their own immigration laws, foreign policy, and trade deals.

        The Constitution was adopted because the old Articles of Confederation weren’t working. We had a weak central government that was in the position of herding cats vis a vis the states. We tossed that. One of the early problems was the peace we signed with England.

        Part of the deal was that debts owed to us by UK folks would be paid, and debts owed to UK folks by Americans would be paid. Well, some of the former colonies passed laws to protect good Americans from unfair debts payable to the tyrannical English enemy, who, after all, killed a bunch of us. How dare they claim we owe them a penny? We already paid too much in blood.

        Enter the Supremacy Clause in the Constitution to deal with this type of problem. That makes US law–and its treaties–the supreme law of the land. You can’t have a country, if it can’t make deals that will be stuck to with foreign governments–or if you let the states make their own side deals. In that case, why should foreigners even bother talking to the feds? (A side light of the opinion in the Texas case is that Texas would have to negotiate with and cut deals with Mexico–a no-no under the Supremacy Clause. Another was the fact that SB4 didn’t recognize–and directed judges to ignore–a defense to deportation under the Convention on Torture–a treaty obligation–and would put egg on our face internationally.)

        It’s not like Texas doesn’t have two senators and a large delegation of representatives in Congress who could have–and did–push border security legislation, until Trump said kill it. This ain’t taxation without representation.

        As to your last question, thanks to Trump, we will have to wait for the next president, whoever that is, to take action. As a two-time loser, I doubt Trump would be able to torpedo legislation, and a bipartisan bill will pass in a second Biden administration, since he will be campaigning against Trump’s border sabotage.

        If it’s Trump, I hope you will excuse me for pointing and laughing when he asks yet again for the same stuff he said Biden didn’t need to fix the border. “Nobody knew you couldn’t detain illegals if you have no place to put them! Nobody knew you need more immigration judges to do more deporting! Nobody knew you needed more border patrol agents! Nobody knew you had to follow the law until changed by Congress!” The comedy would almost be worth it.

  9. I despise the term gaslighting, but I must use it here..

    The media on a daily basis gaslights our populace on so many subjects. This ruling from the Supreme Court is just another in a long line.

    It did not take much to understand that they kicked this back to the appellate courts, but to read the headlines you would have thought it was a green light.

    Tom, thank you for your thoughtful analysis of the headlines and Stu, thank you for opening the discussion as you have so many times since you began this site.

    To the rest please read behind the headlines, they are merely crafted to get you to click their sites.

    We are better than this.

  10. Biden owns this mess and can end it today. Typical lawyer trying to twist the truth.

    1. If Trump wins, I’ll be quoting you when he asks Congress to act. Promise me you will vigorously oppose anything he asks Congress for on the border. Nah, we don’t need more detention facilities. Nah, we don’t need more immigration judges. Nah, we don’t need more agents. Nah, a president doesn’t need the type of border authority Title 42 provided during the pandemic. A president can just wave a magic wand, and all will be well.

      So Trump was flat out lying when he said we needed this stuff in 2019 (before he was able to invoke Title 42)
      The GOP was flat out lying when it said, we’ll trade aid to Ukraine and Israel for this fix to the border.

      Or is it just that when Big Brother says, “Forget about that,” that all goes down the memory hole for you.

      With your very own Ministry of Information installed in your head, I hope it doesn’t glitch too badly and make you forget where you parked your car, or where you live.

  11. Everyone in the country but you knows Biden is responsible for the border mess. Get your head out of your ass and stop blaming Trump. He been out of office for years.

    1. Everybody knows he WAS responsible for it, until Trump prevented any progress. You don’t have to forgive Biden for messing things up. And, you are free to forgive Trump for preventing the border fix. But, geez, at least have some self-awareness.

      Easy enough to say:
      “Biden let things go on for too long for me to ever let him off the hook.” And, “Trump made the smart political move of denying Biden a win on the border, because otherwise it would have harder to campaign on it. If Biden had shut down the border, as he promised, on day one after the bill passed, it would have been pure political posturing to cover up his earlier bad policy. Making sure that voters continue to rightfully blame Biden for his bad policies is more important than closing the border. Because Biden was so bad on the border, he shouldn’t be allowed to fix it, or, even worse, claim credit for fixing it at this late date. Another year of a bad border is well worth it, if it gets Trump elected.”

      I’d disagree with your conclusion, but at least you wouldn’t have to make stuff up in order to support it.

  12. Congress denied Biden the win not Trump because it was a lousy bill. Biden and the democrats ignore the laws anyway and we won’t settle this until we vote them out.

    1. Heh. Trump didn’t think it was a lousy bill when he asked for the same things. Congress was all set to pass it until Trump said no. It was the GOP that flip-flopped on it, per Trump. Before that, they had been popping the champagne on extracting from Biden exactly what Trump (had) wanted.

      And, what better way to show that Biden wouldn’t do anything on the border than to call his bluff? If Congress passed the bill, and Biden didn’t follow through, he’d be toast. I, and certainly Stu, would have been jumping up and down screaming.

      How would that be the “win” Trump said he didn’t want Biden to have? Why not give Biden enough rope to hang himself? If what you say is true, Trump is dumb as a post for coming out against it.

      Look, I don’t begrudge it if someone who says, “On balance, I like Trump’s policies more than Biden’s.”

      If you are hellbent on repealing the ACA because we were better off when millions more were uninsured and folks with pre-existing conditions couldn’t get insurance, you have to vote Trump.

      If you’d really like to see Putin take over Ukraine, and maybe the rest of Eastern Europe, then yeah, you really have to vote Trump.

      If it’s important to you that the Chinese Communist Party is able to maintain a direct line into millions of American households through Tik Tok, then yeah, you have to vote Trump. (After all, he would need CCP propaganda support for his decision not to defend Taiwan.)

      If you are anti-union, and want Trump to re-appoint lifelong anti-union activists to the National Labor Relations Board, who, for instance, strenuously defend an employer’s right to retaliate against employees who file wage-theft claims, then you absolutely should support Trump.

      If you think it is critical that the Trump tax cuts for folks making more than $400k not be allowed to expire, then supporting Trump makes a lot of sense.

      And, of course, if you think NATO is an obsolete and unimportant counterweight to the Russia-China-Iran alliance, then sure, Trump’s your guy.

      I don’t happen to subscribe to those positions, but you are free to hold them and vote accordingly.

      1. I like peace and prosperity like we had under Trump. Not high inflation and interest rates. Not paying for wars that should have never happened if we didn’t have a weak president . If you want to destroy the country vote for Biden.

        1. Right. Trump is magic. Through his divine powers he will be able to change Russian and Chinese ambitions, hug North Korea into democracy, fix inflation with more of his budget-busting record deficits and tax cuts for his rich friends, all while lowering prices back to 1950s levels.

          And, it is obvious that tossing away our allies and stabbing our friends in the back is the best way to be strong internationally. No doubt, as a proud graduate of the Neville Chamberlain School of Diplomacy, Trump will give us peace in our time.

          Yup. Policy has got nothing to do with it. Trump, by the mere force of his presence, will fix everything. Okay if you think that, but I find it kinda creepy.

          1. Russia did nothing under Trump . North Korea stopped firing their missiles and China did not threaten Taiwan when Trump was president. We also had low inflation and everyone received tax cuts. The Europeans have been stabbing us in the back for years by not paying their fair share for NATO. Stop lying

      2. I was about to post when I saw your response, Tom. You said it all, and said it well. The bill was there and ready to pass until the orange asshat killed it. That’s on him, not Biden or the Democrats. Pay no attention to old Daniel. He is simple not good at logic, reasoning, or thinking. He is just blinded by the crepuscular orange light and foul stench of his one and only god.

        1. Trump is not in office assholes. He can’t kill anything he has no vote. It was a bad bill that was going to allow thousands off illegal immigrants to come in each day. Congress killed the bill not Trump. Learn how government works before you say stupid things.

Comments are closed.