Categories
Immigration Legal, Laws, and Regs

If Texas’ interpretation of invasion is correct, then Illinois can declare war on Texas

Today the lawyers from the US and Texas are meeting in a courtroom with Judge David Ezra over the fate of Texas’ SB4. This law that Abbott signed into existence basically turns over federal immigration powers to the state—a blatantly unconstitutional act that should abruptly end if our courts followed the law.

I particularly like the US reply in response to Texas’ continued assertions that it can protect itself from an ‘invasion’. Texas repeatedly brings up Madison in support of its claim. In the US filing, lawyers quote Madison from the 1805 second edition of *Debates & Other Proceedings of the Convention of Virginia, arguing that to Madison, an invasion was a hostile act from a sovereign entity.

Texas invokes James Madison’s discussion during the Virginian Ratifying Convention about the use of state militia to stop smugglers. PI Opp’n at 26. But as Texas acknowledges, id., Madison’s discussion was in response to concerns about Congress calling forth militia to execute federal law. See Debates & Other Proceedings of the Convention of Virginia, 292–94 (2d ed. 1805). And when Madison did discuss “invasion” in the context of the Invasion Clause, U.S. Const. art. IV, § 4, he recognized that it must be conducted by sovereigns. See, e.g., Debates of the Convention of Virginia, 302 (2d ed., 1805) (“[the States] are to be protected from invasion from other states, as well as from foreign powers.”); The Federalist No. 43 at 293 (Cooke ed.1961) (“A protection against invasion is due from every society to the parts composing it. The latitude of the expression here used seems to secure each State, not only against foreign hostility, but against ambitious or vindictive enterprises of its more powerful neighbors.”).

The US case is strong, but what if the courts find for Texas?

Reading through the Texas court documents in this and the other Texas border lawsuits, in particular remembering what Fifth Circuit Judge Ho said about ‘weaponizing’ migrants becoming an invasion, makes me think that if the courts were to find that Texas is right, then Abbott’s acts in shipping migrants to cities in Democratic states like Illinois and New York is, in their interpretation, an invasion.

After all, this act is a weaponized flow of migrants, is it not?

If so, then following the legal logic that Abbott and Ho proffered, states like Illinois should be able to declare war on Texas. Not just Illinois, but California, Colorado, New York, and Pennsylvania could also declare war.  After all, why should Texas be the only state allowed to unilaterally act during an ‘invasion’?

If this is true, then one could extend Illinois’ declaration of war to include states like Florida, which has also weaponized migrants in an attack on Democratic states. Or even my own state of Georgia, whose Governor, Kemp has decided to send National Guard members to Texas ‘in support’. Why Shouldn’t Illinois declare war on Florida and Georgia?

After all, Illinois hasn’t done anything other than scramble to find warm clothing and shelter and food for the migrants. It hasn’t done anything to cause harm to Texas, Florida, and Georgia. Illinois is the innocent state suffering the consequences of hostile actions initiated by other, sovereign, states. I would think war would be the natural outcome of these events.

Fair’s fair.

*If you want to go to the source, you can find copies of the Notes online, but be forewarned about the typographical long s, which looks an ‘f’ and takes some getting used to.

An example taken from the Notes book, demonstrating the use of the long-s
Excerpt from Debates and other proceedings of the Convention of Virginia
Categories
Immigration Legal, Laws, and Regs

The Texas Buoy case: Disturbing Document Drama from the Fifth Circuit

Update: This was a difficult decision to read because there were so many people writing bits. I had missed Judge Oldham’s own dissent at the end of the document. Probably still trying to wrap my head around Ho’s. Altogether, 5 judges offered opinions in this one document.

Thanks to Chris Geidner for taking this document on, and managing to keep all the various judges straight. I know I sure couldn’t. And I really appreciated reading the view from someone who is a lawyer and expert on Constitutional law.

Last Friday, the Fifth Circuit issued a positive decision in the buoys case. The decision was positive—the Fifth Circuit will no longer stand in the way of the merits trial for the case—but the writing in the decision is not.

A quick recap of the case:

Texas had plunked a 1000 foot saw-bladed deathtrap of buoys right in the middle of the Rio Grande. The US sued because Texas had never contacted the Army Corps about placing this obstacle in the river. Long story short: the US won a preliminary junction, Texas appealed, lost the appeal, and then asked for an en banc (all judges) hearing on the appeal.

I find it unlikely Texas would have succeeded in its request in another district (en banc hearings are rarely granted), but they are in the Fifth and they are Texas, so of course, the Fifth said sure thing.

This is when things get interesting. A few days after the Fifth granted Texas’ request, the district judge for the case, David Ezra, pulled the parties together into a status hearing. In the hearing, he laid out the schedule for proceeding with hearing the case on its merits. Just because a preliminary injunction is granted, doesn’t mean the case ends. A preliminary injunction typically doesn’t have all the facts. Only after the case proceeds to a trial on its merits can a decision be made that’s final.

Now, an Appeals court has to make their decisions based on their view of whether the trial judge errored when making a decision on the facts as they were known when a district court issues a decision, whether for a preliminary judgement or a final decision. If I emphasize this, it’s because Judge Ezra emphasized this, strongly, in the status hearing. And the reason why is there was a major change in the case after the preliminary injunction hearing.

Originally, the US sued Texas for violating the Rivers and Harbors Act. The thing with the RHA is then we get court cases where judges are making decisions about what is or is not a ‘river’ covered under the RHA. In this case, Texas says the Rio Grande is not covered because it’s not a commercially viable river, while the US notes that the Rio Grande has a long history of being included in the RHA.

However, after the preliminary injunction was issued in the district court, and before the Fifth halted the decision by granting an en banc hearing, the US filed an amended complaint and added another and much stronger argument to their case: that the buoys also violate a 1848 treaty we have with Mexico, known as the Treaty of Guadalupe Hidalgo.

If there’s debate about what is or is not a river in the RHA, there is no debate about the Rio Grande’s status in the treaty and one immutable fact: treaties with foreign powers are supreme. As the US noted in the amended complaint, the treaty states that Rio Grande navigation “shall be free and common to the vessels and citizens of both countries; and neither shall, without the consent of the other, construct any work that may impede or interrupt, in whole or in part, the exercise of this right; not even for the purpose of favoring new methods of navigation.”

Judge Ezra wanted to move ahead to the trial on the merits of this case and he wanted to do so expeditiously because while the Fifth is willing to push out the en banc hearing until May, the buoys are still in the river. These buoys are dangerous, and two bodies have already been recovered from them. And, as has been noted in the US filings, Mexico is particularly unhappy that the buoys are still in the river.

(Mexico: the country we’re dependent on to help manage the flow of migrants to the border. Mexico, whose actions based on a recent meeting with US officials have helped *slow the flood of migrants down to a very manageable trickle.)

However, moving this case expeditiously is not in Texas’ interest because, frankly, they know their case is toast. Even with the Fifth putting its entire fist on the scale, their case is toast. And where the case goes, the buoys go, and there’s fewer photo ops for Abbott and his Republican governor cohorts.

Their only option? Run to the Fifth. And run they did. Before Judge Ezra could rule on their request to halt the merits trial, before the US could even respond to their request to halt the merits trial, they improperly filed a motion to stop the case in the Fifth. What was worse was the Fifth granted it.

All of this leads up to the decision the Fifth published on the 9th. I’m not a lawyer, but I suspect they knew that they acted improperly in granting the Texas request. And  knowing this left many of them feeling peeved and pissy as hell.

They denied Texas’ request to halt the merits trial, but one opinion writer, Judge Willett scolds Judge Ezra for ‘rushing’ to trial.

We are particularly concerned by the district court’s sudden decision
to expedite trial, its seeming indifference to the parties’ arguments, and its inconsistent comments about the need for extensive pretrial discovery.

Ultimately, though, after more pages of gratuitously chastising Judge Ezra, in a concurring opinion, Judge Willett gets to the point:

Despite our misgivings about the district court’s decisions, we cannot say that the rigorous criteria for mandamus are fulfilled. The district court’s scheduling orders, although questionable, fall shy of showing a “persistent disregard of the Rules of Civil Procedure” or a pattern of noncompliance that could justify mandamus relief.

In other words, Texas’ request for **mandamus relief was denied, because Judge Ezra did nothing wrong.

Judge Douglas, writing for herself and other judges, concurred with the decision, but not the chastisement.

Finally, I wish to emphasize that the parties were not blindsided by the district court’s decision to quickly move this case to trial on the merits. In its September 2023 order granting a preliminary injunction, the district court indicated that it “intend[ed] to expedite this matter” to resolve the full merits in “the shortest time possible.” Preceding that order, the district court permitted extensive discovery. Texas itself, in opposing the preliminary injunction, stressed the urgency with which it seeks to remedy the “invasion” at the border. Yet now, Texas seeks to prolong the termination of these proceedings by seeking intervention from this court at the eleventh hour without so much as awaiting the district court’s own order on the motion to stay.

The legal term for this is, “Zing.”

The next several pages are a dissent authored by Judge Ho. Judge Ho is a frustrated blogger at heart, as his opinions reflect a fairly extreme ideology more frequently than they reflect the law. The first few pages of his dissension tossed in several cases where the appeals court issued a writ of mandamus. But at page 16, all pretense of this being a legal argument gets tossed.

In essence he accuses some unknown country of ‘weaponizing’ the migrants and therefore the migrants crossing the border is an invasion in fact, and that Texas has the right to defend itself. He uses as justification that some governors agree with Texas, and some Congressional members agree with Texas, and some former FBI agents agree with Texas. Ultimately, he invokes the Consent of Congress but in a twisty way:

In its panel briefing filed months ago, the United States took issue with the State’s invocation of Article I, section 10, contending that a State’s authority to defend itself against invasion is “a non-justiciable political question committed to the political branches of the federal government.” Appellee’s Answering Brief at 36.

But think about that for a moment. If only “the political branches of the federal government” can determine that a State has been invaded, that effectively means that a State is constitutionally prohibited from exercising its sovereign right of self-defense without federal permission.

That’s hard to reconcile with the text of Article I, section 10, which makes clear that a State does not need “the Consent of Congress” to act if it is “actually invaded.” U.S. Const. art. I, § 10, cl. 3. Article I, section 10 establishes, first, a general rule that States ordinarily need Congressional consent to act—and second, an express exception for when States don’t. So it defies the plain meaning of Article I, section 10 to say that, as a general matter, a State must have “the Consent of Congress” to act—but if it’s “actually invaded,” the State still must have “the Consent of Congress.”

Invasion. To Abbott and evidently Ho, the flow of immigrants is an invasion. And Ho and Abbott and others reference James Madison when doing so.

James Madison repeatedly recognized that States feared attack from
other States, as well as from foreign sovereigns. He sought to assure fellow citizens that, under the Constitution, the States would reserve the right to defend themselves against either threat

However, as Just Security notes, to Madison, an invasion was an armed and violent military incursion.

In Madison’s discussion of Article IV in Federalist 44, he emphasizes that states require “protection against invasion” by both “foreign hostility” and potentially even aggressive fellow states of the union. Throughout Federalist 44, he speaks of both invasion and insurrectionary “domestic violence” as “bloody” events involving “military talents and experience” and “an appeal to the sword.”

This begs the question then: If Ho’s interpretation of peaceful migrants desperate for a new home is an invasion, does he recommend setting up machine guns on the shore of the Rio Grande and shooting the people down midstream? We already know Abbott is contemplating this, but does Ho also?

If Ho answers no, and I hope to goodness he does, then there is no invasion. There is no threat to the authority of either the US or Texas. And the only blood being spilled at the border, is the blood of migrants trying to make their way through razor wire.

These folk are migrants. These are men, women, and children fleeing to the United States because they are desperate for a better life. They are not armed soldiers with tanks attempting to overrun the legitimate government, as we’re seeing in Ukraine. They’re just people.

They’re like Judge Douglas’ ancestors, or Judge Willett’s ancestors, or the ancestors for many of us. They’re also like Judge Ho, who is an immigrant. They are just people.

I would expect such talk of an ‘invasion’ from the stubbornly ignorant, who still bemoan the ‘stolen election.’ I would expect it from Abbott, who uses the bodies of migrants as a podium from which to speak and obtain power. I would expect talk of ‘invasion’ from some members of Congress, particularly those who have little to show for their time in Congressional halls. And I would expect to hear Trump incorporate ‘invasion’ into all his campaign speeches, because the only way he can ever win is by creating imaginary enemies to vanquish.

I did not expect to hear this nonsense from an educated lawyer that the Senate deemed competent to sit on a federal court of appeals.

*When the group of disaffected individuals decided to go down to support Abbott at the border, they were disappointed to not find the ‘invasion’ they were promised. Abbott then swung from talking about the invasion of migrants, to how his border efforts are why there are fewer migrants. Abbot’s claim is false. The drop in migrants is based both on the cyclical nature of such migrations, and Mexico’s actions.

**From Cornell Law Library ‘A (writ of) mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion…According to the U.S. Department of Justice, “Mandamus is an extraordinary remedy, which should only be used in exceptional circumstances of peculiar emergency or public importance.”‘

 

Categories
Immigration Legal, Laws, and Regs

All the Texas border lawsuits in a nutshell

There is a lot of confusion about what is or is not happening in Texas, particularly as it relates to the Supreme Court decision on the razor wire case, and what the courts have ordered Texas to do.

I’ve been following the US vs Texas, Texas vs US border-specific court cases for months, starting with the US lawsuit against Abbott in an effort to remove saw-bladed buoys from the Rio Grande. I decided a quick primer on the cases—with links to the Free Law court document archives—would be helpful. Not just for others … I’m also having a hard time keeping track of which case is in front of the Fifth or for what order.

Needless to say, it’s a mess. And Texas is not the only entity participating in the growing Constitutional crises: the Fifth Circuit court has been a willing partner in the events.

The Texas Buoy case

This is the first case I started following. It’s also the one that interests me the most because of what it says about the Fifth Circuit, and I’ll have a more detailed post on this in the future.

(I have been documenting the case on Facebook, and have since started moving the posts over to Burningbird, under the tag Texas Immigration Lawsuits.)

The events started with Texas placing a 1000 foot string of saw-bladed, deadly buoys with concrete anchors and underwater anti-personnel netting underneath in the middle of the Rio Grande river. Abbott did not contact the Army Corps of Engineers about placing the buoys in violation of the Rivers and Harbors Act. In response, the US sued Texas to remove the barrier.

Timeline of event:

  • July, 2023: The US filed suit against Texas and asked for a preliminary injunction to force Texas to remove the barrier. Texas opposed the motion for preliminary injunction.
  • The case was assigned to senior judge David Ezra. Texas requested and received expedited discovery. It also asked to consolidate this case with another filed by a canoe company, EPI’S Canoe and Kayak Team, whose business was negatively impacted by the buoys. The plaintiffs in that case successfully argued in court that the case belongs in state court, not federal court, and the case was remanded back to the state court. Mr. Fuentes and his company eventually put the lawsuit on hold pending the outcome of the federal case. (Strongly recommend checking out their Facebook page. The owner, Jesse Fuentes, is a pretty incredible person. If I were to visit Texas it would solely be to go kayaking with him.)
  • In August, expedited discovery was allowed for three government witnesses, and the state responded to the US complaint, as well as opposing the request for a preliminary injunction. In addition, the US conducted a survey of the buoys and discovered most were in Mexico’s territory. Texas moved the buoys during the night.
  • September 6, Judge Ezra granted the US request for a preliminary motion, but only ordering Texas to remove the buoys to the shore of the river. Texas immediately appealed the order to the Fifth Circuit, and asked for an emergency stay of the preliminary injunction. The stay was granted. The buoys remained in the river.
  • In October, while the Fifth Circuit was considering the preliminary injunction appeal, the Texas case continued in the district court. The US filed an amended complaint, noting that the buoy barrier also violated a US treaty with Mexico.
  • In December, Texas filed a motion to dismiss.
  • The three-member panel of the Fifth agreed with Judge Ezra and upheld the preliminary injunction. Texas requested an en banc (all members) hearing on the appeal. The Fifth granted the en banc hearing.
  • In January, Judge Ezra held a status conference on a new schedule for the bench trial on the merits, also promising to decide on the motion to dismiss by end of January.
  • In a series of extraordinary events, Texas threatened Judge Ezra that they would go the Fifth the very next day if he didn’t postpone the bench trial. Before the US filed a motion to oppose this demand, and before Judge Ezra even moved on it, Texas demanded that the Fifth stay the trial.
  • Counter to the normal procedures, the Fifth Circuit gave Texas what it wanted. Currently, the bench trial on the efforts is on hold until the en banc hearing on the preliminary injunction is held.

I’ll have more on the Fifth’s actions on this case in a future post.

District court docket at CourtListener

Fifth Circuit docket at CourtListener

The Texas Razer Wire Case

It’s tediously difficult to read through a Texas state complaint. The documents are full of hyperbole and extraneous complaints. In this case, Texas sued the US because Border Patrol agents were cutting the concertina (razer wire) blocking access to migrants who had already crossed the US border.

The state didn’t ask for reimbursement of the wire. No, they wanted the courts to forbid the US Border Patrol from cutting the wire in order to access the migrants who either were in danger of being hurt or killed, or who had already crossed the US border.

  • October 2023, Texas filed the complaint. It then immediately moved for a preliminary injunction to stop the agency action. A stay was granted until the judge, Alia Moses, ruled on the preliminary injunction.
  • The US responded to the request for preliminary injunction, Texas replied, and a hearing was held in front of Judge Moses in November.
  • Judge Moses demanded considerable amounts of documents from the US—more than it could provide in the time allotted. She finally eased up a bit and limited the date range for the document request.
  • There was a flurry of activity in November, including multiple meetings, amended memorandums, and document production. November 29th, Judge Moses denied the state of Texas its request for Preliminary Injunction.
  • Texas immediately appealed the decision to the Fifth. Texas asked the appeals court, in a confused and disjointed request, to halt US border patrol activities except if life was in danger. The Fifth picked its way through the mess to give Texas what it wanted.
  • In the response the US filed, this sentence encapsulates the danger of the case:

The fundamental question presented is thus whether a single state, upon becoming dissatisfied with federal policies, may bring a state-law suit to control the manner in which federal officials carry out federal law.

  • In December, the Fifth granted Texas’ motion for a preliminary injunction.
  • The US immediately filed for an emergency appeal to vacate the injunction with the Supreme Court on January 2. The Supreme Court granted the US request to vacate the preliminary injunction, which means that the US border agents could cut the concertina wire in order to apprehend and/or assist migrants who had crossed the US border.
  • The Fifth then issued a limited remand January 28 back to the district court specifically to gather evidence establishing the factual record. Frankly, this sounded screwy to me, but I leave it to the lawyers to say whether this is screwy or not.
  • As it stands, the case flow is now back in the district court, with hearings set for March for establishing this factual record. In the meantime. the US Border Patrol can continue doing its duty.

There has been considerable confusion about what the SCOTUS decision means.

It is a limited decision based on a limited request by the US: to deny a preliminary injunction that would have prohibited the Border Patrol from cutting concertina wire in the performance of its duties. Based on the SCOTUS decision, the Border Patrol may cut the wire. However, Texas may still lay down the wire and it isn’t in violation of the Supreme Court decision. And the decision has nothing to do with the buoy case mentioned earlier.

The district court docket 

The Fifth Circuit case docket

SCOTUSBlog Supreme Court case docket

The SB4 Case

In 2023, the Texas legislature passed Senate Bill 4 (SB4). The US sued Texas soon thereafter. In its complaint, the US stated:

The United States brings this action to preserve its exclusive authority under federal law to regulate the entry and removal of noncitizens. Texas’s Senate Bill 4 (SB 4) creates purported state immigration crimes for unlawful entry and unlawful reentry, permits
state judges and magistrates to order the removal of noncitizens from the country, and mandates that state officials carry out those removal orders. But Texas cannot run its own immigration system. Its efforts, through SB 4, intrude on the federal government’s exclusive authority to regulate the entry and removal of noncitizens, frustrate the United States’ immigration operations and proceedings, and interfere with U.S. foreign relations. SB 4 is invalid and must be enjoined

SB4 has been compared to Arizona’s SB1070, passed in 2010, and which was partially struck down in the Supreme Court in 2012. There are a lot of similarities between the two bills, but there’s one major difference: SB4 actually allows state authorities to deport migrants they deem illegal. Not even Arizona went this far in their law. SB4 is blatantly, and I mean blatantly, unconstitutional.

  • Texas passes SB4 and Abbott signs it into force in December, 2023.
  • The Las Americas Immigrant Advocacy Center and the County of El Paso filed suit against Texas in January.
  • Soon after, January 3, the US filed suit against Texas.
  • In January, both cases were consolidated and assigned to Judge Pittman.
  • The US files for a preliminary injunction against Texas, and Texas files a motion to stay its response to the complaint until after the preliminary injunction decision.
  • January 30, the case was reassigned to Judge David Ezra.

I have some concerns about the case being moved to Judge Ezra, and not because he’s not a good judge. It’s because of the overt hostility displayed against him by members of the Fifth. The actions of the Fifth are as much, or more, responsible for the mess this situation is, as Texas.

The court case docket at Court Listener

 

Categories
Education Environment Reads Social Media

What I’m Reading – Jan 2 2024

Today is a good day to read.

I subscribe to a good number of newsletters. Most are freely available, even if you don’t subscribe to the parent publication

One such newsletter is Landline, from High Country News. I subscribe to the Landline because it has excellent coverage of what’s happening with clean air and water, the Endangered Species Act, the Interior, and climate change.

From the Landline:  Is Biden waging a war on energy? Or on the climate?

Biden is twixt and tween on climate change and we’re going to end up with a really bad President if we don’t recognize this. Yes, we wish he could have done more for the environment and fighting climate change. Given. However, if you keep up with court cases, you realize he has done what he could given the current state of our court systems—not to mention the current state of Congress.

***

Another newsletter is from The 74, a media site dedicated to all things educational. You don’t have to be a teacher—or a parent—to have an interest in education. After all, what happens in schools impacts on what type of citizens kids become in the future. And even us older childfree couples have to live with these citizens.

From The 74, a story about one of the largest school districts in the country in Virginia, and the impact of its mistaken release of private and confidential data from 35,000 students.

From The 74: Alleged Rape Victim Presses Virginia’s Fairfax Schools for Answers on Records Disclosure

***

The Climate Coach is one of Washington Post’s free newsletters. You don’t have to be a subscriber to the Post to get the newsletter. Today’s Climate Coach is about our need to stop buying so much crap…and to consider getting rid of the crap we have.

Article has had the paywall removed.

From the Climate Coach: The Swedes know the secret to happiness: You are not your stuff

***

Speaking of newsletters, I suspect most of us are signed up for one or more newletters from authors who publish on Substack. I subscribe to several, though I can’t afford to be a paying client of all of them.

You might have heard recently about a neo-Nazi account on Substack, and the company’s response when asked about it. Linked below are some of the replies from people I follow on Substack.

As for me? If someone moves from Substack, I’ll do my best to find and follow them. But I won’t unsubscribe from someone who wants to stay on Substack. I’ve had an online site long enough to know that no matter where you go, bad people follow. I lease my server space from Linode, which is now a part of Akamai. I would not be surprised if Akamai is hosting a neo-Nazi web site. Or two. And if I find this out, I’m not going to pull my server and go elsewhere, because wherever I go, the bad people will follow. If not immediately, someday.

If you want to silence bad people, you drown them out with the good. So, don’t link to the bad people, don’t talk to the bad people, and don’t give the bad people attention. Only echo the good.

So, I’m linking to the good.

Kevin Kruse: Moving Forward

Ken White: Substack Has A Nazi Opportunity

Thomas Zimmer: On Substack’s Nazi Problem, and Ours