Can Texas protect its border?

MYRNA BROWN, HOST: It’s Thursday the 21st of March, 2024.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Myrna Brown.

MARY REICHARD, HOST: And I’m Mary Reichard.

First up: Texas and the federal government’s border battle.

Here’s a timeline: In November, Texas passed a law that mirrors federal law. It made illegal border crossings a state crime. The law authorized the state to detain and deport people who violate the law.

BROWN: So border law on.

REICHARD: Then in January, the Biden administration sued Texas. It argued border enforcement is a job for the federal government, not individual states. So a district court blocked the law.

BROWN: Ok, law off.

REICHARD: But then the U.S. Court of Appeals for the Fifth Circuit allowed the law to take effect, pending appeal. The Biden administration filed an emergency request opposing that to the Supreme Court which the high court denied on Tuesday, allowing the law to go into effect.

But that lasted only a few hours. Late Tuesday night, the Fifth Circuit froze that ruling.

BROWN: So law on…and then off again.

REICHARD: Right. Stay with me. Yesterday, the U.S. Court of Appeals for the Fifth Circuit heard arguments on whether the law should stay on hold while the case proceeds. Judge Andrew Oldham boils down the issue.

ANDREW OLDHAM: We have no clue how any of this would actually be enforced, because there's not been a single person who has been arrested, not a single person who has been ordered removed, not a single state judge who's had occasion to adjudicate a single provision of this in any way. So we're predicting all of this, right? And we have to say all of it is unlawful, and therefore the entire thing will never go into effect, so saith, the federal court?

BROWN: Talk about legal whiplash! Here to clarify things as they now stand and how the Supreme Court may handle a future dispute about the border is Daniel Suhr. He is an attorney in Milwaukee, well versed in constitutional law, and a contributor to WORLD Opinions.

REICHARD: Daniel, good morning.

DANIEL SUHR: Good morning, Mary. Great to be with you.

REICHARD: Daniel. Let’s start with things as they now stand. Can Texas defend its own border or not?

SUHR: Let's be clear, Mary, Texas cannot enforce the law making it a crime that allows Texas to arrest people who crossed the border illegally. But I don't think that's going to stop Governor Abbott from a number of other tools that he's already using to defend the Texas border. He's got the national guard down there. He's got the state police down there. And there are a number of alternative tools beyond just this new law that Texas has been using and will continue to use, although obviously this law would make that much more effective.

REICHARD: Well, let's just back up a little bit. The Supreme Court's order on Tuesday, let Texas enforce its own law, as we said that only lasted a few hours. I think a lot of people might ask, why wasn't the high court's decision the final word?

SUHR: So this case is coming up in a very accelerated and preliminary fashion, right? Usually for a case deciding such a big and complicated question of constitutional law, I mean, it could take two, three years. In this instance, though, everything is going lickety split, because so much is at stake. And what happened at the Supreme Court this week is really just a very preliminary ruling, not what we would say “on the merits,” not in a substantive decision. But just a quick snap judgment of do we or do we not freeze the law as it is, while this case is actually briefed, argued, and decided?

REICHARD All right, well, you know, sometimes it's useful to read the different opinions of the justices just to glean what they might do in the future, even though we know that particular order just lasted a few hours. Talk a bit about what the different justices said about the Texas law and what we should do about it.

SUHR: Yeah, so in emergency rulings like this, there's no expectation that the court is going to deliver any opinion. In this instance, though, we did see an opinion for the three justices who were appointed by Democratic presidents. And they were very sympathetic to the Biden administration, that Justice Sotomayor joined by justices Kagan, and Jackson has a brief but opinionated opinion, saying that immigration is really a topic the Constitution reserves to the federal government. That that's the way we've done it for two centuries, and that Texas is going beyond its constitutional boundaries with this new law.

REICHARD: What about the justices in the majority?

SUHR: Mary, we don't actually have a majority opinion here. There's simply a concurrence from Justice Amy Coney Barrett, who is one of the six conservatives on the court. And her opinion focuses on procedure. Her concern is that we don't see this rush to the Supreme Court in cases like this, that there is value in having these issues percolate through the lower courts, and really reserving to the Supreme Court, those decisions that only it can make, and to do so at the end of the case. And so this sort of rushed to the court is something she discourages, but her opinion doesn't give us any sort of insight into her view of the merits.

REICHARD: Well, the ball is back in the court of the 5th Circuit…and a three-judge panel heard oral argument yesterday. What was the focus there? Did they address the merits of the Texas law, or just the process of litigating it?

SUHR: No, we have a deeper insight into the merits at this point. It's still preliminary in some sense, but we're getting really to the core question of what the Constitution allows Texas to do. And so we heard one judge appointed by President Trump, who seemed sympathetic to Texas's position, that it has at least some power to act in this regard. We heard no questions from one judge who was appointed by President Biden, although observers like me presume that she is going to be hostile to Texas's position. And so really, things are going to come down to the third member of the panel, who is a George W. Bush appointee, and is perceived as sort of a moderate conservative on the Fifth Circuit. And the questions she asked were sort of suggesting that maybe there's a middle way here, that some of the Texas law is permissible, and could go forward at least temporarily, that other parts of it are not permissible, especially the direct arrest provisions.

REICHARD: Okay, so what is now next, do you think?

SUHR: This case is going to take a while, and I think it will be back at the U.S. Supreme Court probably pretty soon. One of the arguments Texas is going to make, I think, is that the facts on the ground today are so much more extreme than they were even in 2012 when the Arizona case was up. That at some point, some of the other constitutional provisions, including the guarantee of the Constitution, that states will not be subject to invasion, like that these other constitutional principles really come into play, because things have just gotten that bad. I'm not sure if there are five votes on the court for that, but it's something I think Texas is ready to argue, and will be arguing at the Supreme Court soon.

REICHARD: Daniel Suhr is a lawyer in Milwaukee and a writer for WORLD Opinions. Daniel, thanks again!

SUHR: Thank you, Mary. Great to be with you.

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.