In the wake of the SCOTUS decision finding that President Biden had the authority to direct federal officers to remove the barriers the State of Texas had installed on its border with Mexico, Texas Gov. Greg Abbott’s letter to President Biden (PDF), demanding that he enforce the border is pretty chilling. It opens with:
The federal government has broken the compact between the United States and the States. The Executive Branch of the United States has a constitutional duty to enforce federal laws protecting States, including immigration laws on the books right now. President Biden has refused to enforce those laws and has even violated them. The result is that he has smashed records for illegal immigration.
and closes with:
The failure of the Biden Administration to fulfill the duties imposed by Article IV, § 4 has triggered Article I, § 10, Clause 3, which reserves to this State the right of self-defense. For these reasons, I have already declared an invasion under Article I, § 10, Clause 3 to invoke Texas’s constitutional authority to defend and protect itself. That authority is the supreme law of the land and supersedes any federal statutes to the contrary. The Texas National Guard, the Texas Department of Public Safety, and other Texas personnel are acting on that authority, as well as state law, to secure the Texas border.
I do not believe that Gov. Abbott is entirely right but I don’t believe he’s entirely wrong, either. In particular I think that relying on the argument that these are asylum seekers rings hollow. Most are not asylum seekers.
Arguing that it’s all just politics rings hollow as well.
In particular does presidential discretion extend to ignoring his Constitutional responsibilities?
To my ear that sounds closer to a threat of rebellion than anything I have heard recently.
How is Gov. Abbott right and how it he wrong?
Update
Fully supporting my concern all Republican governors appear to be backing Gov. Abbott.
Several Democrats have called for President Biden to nationalize the Texas National Guard enforce the SCOTUS stay. I think that nationalizing the Texas National Guard would be a very, very bad idea. He’d be better off nationalizing the Illinois National Guard and deploying them to Texas.
In U.S. v. Texas (2023), the SCOTUS ruled that even though DHS “shall” arrest, detain and remove illegal aliens convicted of a list of serious felonies according to federal law, Texas did not have recourse to a judicial order invalidating those portions of the Administration’s Memorandum inconsistent with federal law. Texas was told it was left with “political” remedies, not listed, but at least things like impeachment, refusing to pass laws supported by the Administration, refusing to pass it’s budget, working against his reelection. A few problems with that stance. One is that these are all escalationary compared with a judicial decree interpreting the extent to which the Memorandum conflicts with federal law. Second is that they aren’t really remedies for Texas, so much as for Congress, and most states aren’t as impacted as Texas. Third, the clearest away for Texas to reduce its financial costs related to illegal immigrant convicts is to release them with airplane tickets to O’Hare with the implied understanding that if they return they will be locked back-up. Not a more perfect union.
One remedy would be to take the law review article relied upon by the Colorado Supreme Court and have Biden removed from the ballots for violating his constitutional duty to take care that the laws be faithfully executed. The SCOTUS will probably bar or limit this route.
What political remedies does Texas have besides make this the dominant story going into the election?
Everything Abbott says would be true of every other president, it’s just worse in degree right now. Also, you keep saying they arent asylum seekers and that may be true but that’s not how the law is written. Change the law if you dont like the asylum rules.
Steve
Here is what Chicago is doing to stop the invasion:
“A charter bus company hired by the state of Texas to transport migrants to Chicago is trying to flip the script on the border crisis in a federal lawsuit against the city alleging that its ordinance banning unannounced migrant drop-offs is unconstitutional and punishes transportation companies working with Texas, court documents show.”
“The rules, enacted on Dec. 8 in an effort to slow the surge, require unscheduled one-way buses from outside the Chicago area to get advance approval from the city to drop people off. Violators can be fined $3,000 and have their vehicles impounded, the mandate says.”
“The Wynne lawsuit argues Chicago is also violating the constitutional authority of the federal government to regulate interstate commerce by enacting restrictions that mostly apply to out-of-state companies.”
https://news.wttw.com/2024/01/18/chicago-banned-unannounced-migrant-drop-offs-now-texas-charter-bus-company-suing-over
A difference in degree is a difference in kind. Cities including New York and Chicago can handle hundreds of “asylum seekers”. They aren’t prepared to handle hundreds of thousands or millions. That’s a difference in degree.
You keep saying that’s not how the law is written but that’s not true. The applicable legislation (mainly the Immigration and Natualization Act and the Asylum Act) are quite restrictive in what qualifies for asylum. The Biden Administration has greatly broadened that as well as changing the standard of proof.
The law if fine. It’s the Biden Administration’s interpretation and expansion of it that is the problem. Simple solution: return to historic and commonsense standards.
“The applicable legislation (mainly the Immigration and Natualization Act and the Asylum Act) are quite restrictive in what qualifies for asylum”
The main problem is the interpretation of the law in the area was altered significantly by the Flores consent decree and subsequent judicial rulings flowing from it. Much of the requirements on the Government in this area are legal requirements but aren’t derived from statute; rather a legal settlement. Of course, many people complain how the Clinton administration entered into the Flores agreement was corrupt.
In theory the President can’t change it unilaterally, but it could be changed by the judiciary, what was made by judges can be unmade by judges, or somehow reworking the consent decree.
Anyway, on Texas, right now its all show. The Supreme Court ordered Texas to let the CPB cut razor wire, but they didn’t enjoin Texas from anything, like adding more wire. And the Federal Government holds all the (legal) cards, so Texas is probably left to huff and puff.
The Flores decision (and related) governs the handling of minors. In other words who not what. Since the majority of encounters are with single adults Flores doesn’t apply. It’s an issue but not the only issue.
I suspect I think that Gov. Abbott’s letter and its support by Republican governors is more potentially dangerous than you do.
I believe the appeal on this case failed. Both Biden and Trump lost by court decisions on trying to keep people in Mexico or on their home country while waiting for the asylum claim to be adjudicated. However, if they make it into the US they get to ask for asylum. It’s the law. Change the law so that they need to apply before coming.
Steve
unfortunately our Congress seems to find its attention endlessly diverted.
@steve, that’s pretty much all wrong.
Trump’s Remain in Mexico policy was delayed by the courts, not blocked. Lower court injunctions were lifted by SCOTUS.
Biden campaigned on terminating Remain in Mexico, and when he took office he did so. The termination was delayed by the courts, but not blocked. The SCOTUS ruled that Biden had the discretionary authority to end the policy
A majority of the SCOTUS has treated immigration law as enforceable as a matter of executive discretion. If Trump is elected, he can reinstate Remain in Mexico if he check-marks the procedural requirements that have presented delays in the past. Biden on the other hand is free to ignore immigration law (even when those laws say immigration authorities “shall” do something) as a matter of his own prerogatives as executive. He can ignore law, but not create law (as in creating a status for dreamers).
The bottom line, steve, is that the Biden Administration IS NOT enforcing the law as a matter of executive discretion. Is there a limit to executive discretion in not enforcing the law? At this point the number of migrants crossing the border illegally is an order of magnitude greater than it was a decade ago. There certainly appears to be a political limit and the Biden Administration is running up against it.
“Is there a limit to executive discretion in not enforcing the law?”
In general, I don’t see an intelligible principle on legal limits to prosecutorial discretion (lots of laws fall into “disuse” on account they aren’t enforced). The proper remedy can only be “political” — to change the people enforcing the law by elections or having the law changed as to who is allowed to enforce it.