Authority on the line

MARY REICHARD, HOST: Coming up next on The World and Everything in It: A constitutional crisis.

Last week, a split U.S. Supreme Court ordered Texas to allow federal agents to remove barriers that Texas had installed on the border.

NICK EICHER, HOST: This goes back to a lawsuit Texas filed last year against the federal government. Following the Supreme Court’s order, Texas National Guard installed more razor wire in a part of Eagle Pass, Texas, called Shelby Park.

Meanwhile, some Democrats are calling on the Biden administration to double down and take federal control of the Texas National Guard.

REICHARD: The whole situation raises questions about the limits of presidential versus state power, and joining us to talk about that aspect of the story is Richard Painter. He was the chief White House ethics lawyer in the George W. Bush administration. Painter is now a law professor at the University of Minnesota teaching corporate security and business ethics and is working on a forthcoming book on presidential power.

Good morning professor!

RICHARD PAINTER: Good morning. Thank you for having me, Mary,

REICHARD: We're so glad you came on. Well, this crisis makes a lot of people feel that nobody’s in charge and chaos reigns. We've heard from law professors like Jonathan Turley that Texas is in the wrong here from a purely legal standpoint. What do you say?

PAINTER: Well, this is a very difficult situation. For as many years we've had disputes between the states and the federal government over who has power to do what with respect to immigration. I believe George W. Bush was the last president who really worked toward a bipartisan solution to our immigration issues. And what we've had since then, is states that disagree with the approach of the President have gone their own way. We have liberal states that set up these sanctuary cities where they will not enforce immigration law and actually instruct their law enforcement officers not to cooperate with the INS. And now we have Texas going in the other direction, and seeking to beef up enforcement against illegal immigration in its own way in a manner that collides with the law enforcement, immigration control responsibilities of the federal government.

Ultimately, the federal government has to have a substantial amount of control over immigration policy if we're going to have an effective control of our borders, and not have states going out on their own and coming up with different policies in California than you might have in Arizona and Texas. The United States as a whole needs to have a uniform and effective immigration policy. But that's just the policy argument for having preemption by federal law. Whether federal law actually does preempt once again, is a question of statutory interpretation applied to the specific instance of what a state wants to do in that case.

EICHER: Let’s turn to a statement released last week from Texas Governor Greg Abbott. He threads the needle this way: the federal government broke its pact with the states with President Biden's dereliction of duty in enforcement of immigration laws. That’s led to what Abbott calls invasion which in turn has led to an overwhelmed border patrol and consequently to drug cartels controlling our border. That’s directly implicated in the deaths of thousands of people. That's a summary of Abbott’s statement. Richard, what legal authority does Abbott really have to secure his state border?

PAINTER: Well, it appears that the Supreme Court is saying that he has quite limited legal authority, at least with respect to installing the barbed wire fences. The governor of Texas believes that the President is not adequately enforcing our immigration laws. We're going to have left wing mayors and cities and some governors elsewhere who think that we ought to have more sanctuary cities and go in the opposite direction. And my concern is that this could lead to chaos.

REICHARD: Do you see corollaries in our legal history like this?

PAINTER: I would hope that the governor of Texas does not actually disobey an order of a federal court. It's absolutely critical that the orders of the federal courts be complied with. We don't want to be back where we were in the 1950s when President Eisenhower had to send troops in to enforce federal court orders in Arkansas, and other states that would not desegregate their schools. So whether we agree or disagree with the Supreme Court order, the orders of the court must be complied with. And then the next step is to resolve this issue politically, and the Biden administration needs to effectively enforce the immigration laws. That's part of his job as president, and the voters are going to have an opportunity to hold him accountable.

REICHARD: Why do you think Biden is not enforcing the law? On day one of his taking office, he rescinded the executive orders that President Trump issued that did take better control of the border.

PAINTER: Well, the some of those policies worked, and some didn't. I mean, this was a, we've had challenges at the border for a very, very long time. And the each administration has tried to solve this in their own way. It concerns the balance, when you have people who are seeking asylum, we have statutes that that provide for asylum in some circumstances. And whether or not President Biden is in good faith applying those statutes or to expansively applying those statutes is a political question. But I get back to what's absolutely critical, is if the court issues an order, we do comply with it. There is no other way to have a functioning democracy.

REICHARD: Well, I mean, there's no doubt I don't think you would, you would disagree with this, that the the numbers are much higher now. I mean, I remember quoting a million million cases backlog and immigration courts now it's over 3 million. And that's just in the last decade or so. If you had a chance to talk to President Biden directly, what would you say?

PAINTER: Well this is a this is a crisis. We are a country of immigrants but on the other hand, we cannot just have everybody come in here whenever they want, without screening out potential terrorists and others and drug dealers. But to have this taken over by the political extremes, people talking about, well, we got to have open borders and all that on the far left, and then some of the racist rhetoric on the extreme right, I think has been very, very destructive and contrary to our traditional American values.

REICHARD: Well, the next hearing is on February 7, before the Fifth Circuit, so we will be revisiting this again soon. Richard Painter is a law professor at the University of Minnesota with expertise in presidential power in particular. Richard, thank you so much.

PAINTER: Well, thank you for having me.

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