FUBAR

ICYMI: An Austin judge opened the door for a new wave of legal challenges to @GovAbbott’s mass trespassing arrests of migrants, ruling one man’s arrest/charge was unconstitutional because the Texas initiative usurps federal immigration law. https://t.co/5Y2B9OA3SS #txlege

— Jolie McCullough (@jsmccullou) January 14, 2022

I appreciate Judge Soifer's decision, but I'm not sure it goes very far. Not because of her opinion, but because who's going to appeal it and get it above the trial court level?

Though the ruling may be appealed and applies only to Jesús Guzmán Curipoma, a 36-year-old oil engineer, it opened the door to constitutional challenges from more of the thousands of migrants who have been imprisoned for allegedly trespassing since July, when the governor set his sights on mass trespassing arrests as a way to cut down on border crossings.

“Everybody who has a pending misdemeanor trespassing arrest under OLS will have the exact same challenge,” said Kristin Etter, an attorney with the Texas RioGrande Legal Aid who represents hundreds of migrants. “This sets a clear precedent in all of those cases both pending and future.”

Though far from the first court challenge to Abbott’s arrest initiative — which has been vexed with wrongful arrests, prosecutorial errors, court delays and ethics complaints — Soifer’s ruling is the first to rule against the constitutionality of a migrant’s trespassing arrest, according to Etter.

On Friday morning, Texas Attorney General Ken Paxton vowed to appeal the ruling, though it's not yet clear how he will do so since his office was not a party in the lawsuit. A spokesperson for Abbott said Friday morning that "there is no doubt that this will be overturned."

"The district court did not have legal authority to enter this flawed and collusive judgment without hearing from the Office of the Attorney General," Nan Tolson said in a statement.

Actually, as we shall see, the Texas AG doesn’t have a dog in this fight (Paxton is still not recognizing the legitimacy of State v. Stephens. Not that he has any choice in the matter.).  So the court was not required to hear from the Office of the Attorney General.  Even if it was, the Office of the Attorney General has no standing to appeal the court's decision.  (This is a criminal matter; the Texas AG is still bound by the ruling of the Court of Criminal Appeals.)

Abbott has been using DPS officers and Texas Rangers to arrest migrants released into the country by ICE for "trespass." That isn’t working out well for him,  At best, thanks to the clogged docket in the one county where all the cases are brought, prisoners end up pleading for time served.  The maximum penalty is 30 days, anyway.  Abbott is not addressing the problem.  He's just being a dick, to stay as far to the right in the primaries as he can.

First, the judge is on solid ground:

The supremacy clause makes clear that federal law and the constitution trump state statutes. During the hearing before Soifer, lawyers often referred to the U.S. Supreme Court ruling against Arizona’s controversial law in 2010 that made it a state crime to be unlawfully present in the U.S. The high court largely held that federal law prohibited the state law, in part because it usurped the federal government’s authority to use discretion in the deportation process.

Yes, this case (or one like it) could get to the Supremes (which would probably overturn it's 2010 ruling, because, why not?) but, again, who is going to take it there?  Recall, if you will, that the Texas Court of Criminal Appeals has ruled decisively that the Texas Attorney General doesn't have any criminal prosecution authority unless asked by a relevant county prosecutor provide aid in the case.  Ah!, you say!  Loophole!

Hold your horses.

Abbott's campaign to imprison immigrants cleared to wait for hearings by ICE has been, to put it mildly, a joke. Wrongful arrests ("hell, he looked illegal!"), court delays (the reason this case came to Austin, hardly a border city), and general screw-ups.  Basically, a cluster-fuck; but the rubes like it because Abbott is "tough."  Paxton wants some of that action, not least because he's being challenged by Louie Gohmert, who doesn't seem to have a working brain cell left, but he’s to the right of Paxton.   However Paxton has no authority over these cases (criminal trespass), and can't get tagged in.  (Why would the county ask for Paxton’s help on a misdemeanor case?) The private attorney assigned as an acting misdemeanor prosecutor for McKinney County, where this case originated, tried to tag Paxton, but Judge Soifer wouldn't have it.  So while Paxton "vows" to appeal this case, he has absolutely no standing to do so.  Besides he'd have to appeal to the state appellate court, which will follow the ruling in State v. Stephens that Paxton has no criminal authority.  And unless some court outside McKinney County asks for the AG's help, the AG can't offer any.

So will this ever escape state court and get to the Supremes?  Doubtful.  It would have to go up the chain to the Texas Court of Criminal Appeals (again!) before it could even apply for a writ to the Supremes.  And I don't think McKinney County wants to buy a dog for that fight. Anyone else who can get a case transferred to Travis County (the race is on) will make the same arguments to keep Paxton at bay (although not necessarily to the same judge. Travis has an “open docket.” You get the judge available on the date of your hearing. You don’t get to choose.) If Paxton can’t get in, he can’t make an appeal. Even if he does, his track record with the Court of Criminal Appeals is not that good,

In related news:

Here's a new one: Arizona AG Brnovich has filed a legal opinion concluding that Gov. Ducey has the power to send armed *state* troops to the border under Art. I, § 10 and Art. IV, § 4 of the *U.S.* Constitution because Arizona has been "actually invaded":https://t.co/Cav53Dk8V4

— Steve Vladeck (@steve_vladeck) February 7, 2022

Abbott already did that, too.

Gov. Greg Abbott rushed to send waves of troops to the border as Texas National Guard officials scrambled to execute a massive mobilization.

Some Guard members say the operation has set back their income, education and well-being. https://t.co/5XeALU73Df

— Texas Tribune (@TexasTribune) February 7, 2022

His primary opponents are beating him up HARD for that clusterfuck.  Mistreating National Guard soldiers for no good god-damned reason (they can't arrest anyone; they really can't do anything but sit around.  The situation is a literal nightmare for them, and in this case the enemy of my enemy is my friend.) is not a winning “conservative” position. It was supposed to get Abbott out to the right of Huffines and Alan West.  Instead West is playing his former military career cred to speak up for the National Guardsmen who are going broke, attempting suicide, and even going AWOL because Abbott's orders are doing nothing and ruining the lives of the Guard. So sure, Ducey, send troops to the Arizona border.  What could go wrong that would blow-back on him?