Everybody Take Two Steps Back From The Cliff

In case it helps to explain things, here's a @CNN Q&A I did with @zbryonwolf providing legal context for what Texas is (and is not) doing at the border after last Monday's #SCOTUS ruling in the razor-wire case:https://t.co/93Y9gSnSA3

— Steve Vladeck (@steve_vladeck) January 27, 2024

Professor Vladeck explains it all for you:

With regard to the court, all that the justices did on Monday was to vacate a lower-court injunction, which had itself prohibited federal officials from cutting or otherwise removing razor wire that Texas officials have placed along or near the US-Mexico border. 

Nothing in Monday’s unexplained order stops Abbott from doing anything; it just means the federal government can’t be sanctioned by courts if it takes steps to remove those obstacles. 

Instead, the real issue here is that Abbott is deliberately impeding the ability of federal officials to act in and around Eagle Pass – in a way that isn’t in outright defiance of the Supreme Court (yet), but that is inconsistent with the supremacy of federal law.

So, not good; but not anywhere near Ft. Sumter on the Rio Grande.

That’s why Abbott is trying to invoke a claim that the federal Constitution itself authorizes what he’s doing, because if the Constitution doesn’t empower him to take these steps, then “preemption” (the idea that federal statutes and federal policies promulgated pursuant to those statutes override contrary state laws and policies) should be the whole ballgame here.

You're all relying on Greg Abbott (and Dan Patrick) to provide your anxieties.

And yes, we can blame the Supreme Court:

VLADECK: Yes. One of the real issues with the Supreme Court handing down such significant rulings without explanation, as I write about in “The Shadow Docket,” is the lack of guidance it provides to government officials, lower courts and the public about what is and what is not allowed going forward. 

Unfortunately, Monday’s ruling is a perfect example. Abbott is, quite obviously, provoking a fight over how far states can go to supplant, and not just supplement, federal law enforcement authority. 

Until and unless the Supreme Court conclusively answers that question, we’re going to be in this limbo – with the unseemly prospect of a physical standoff between state and federal officials in Texas while that question goes unanswered.

Along with our own gullibility, if course. (Why is it we always take what stupid public officials say at face value just because they are public officials?)

Just like Abbott and Monday’s ruling, I don’t chalk either of these cases up to direct defiance of the court. That said, the calls we’ve seen this week from Republican elected officials at both the state and federal level to ignore the Supreme Court (which are also premised on a misunderstanding of what the court did and didn’t do) are more than a little alarming – and evidence of how the Supreme Court’s declining public credibility has ramifications not just for left-wing critics of the court, but for right-wing critics, too. 

It says a lot about where we are that even this Supreme Court isn’t far enough to the right to satisfy these politicians – and it says a lot about the costs of the eroding public confidence in the court that attacking the court from the right is becoming increasingly popular. 

Indeed, we’re seeing in real time exactly why it’s important for the court to have broad-spectrum support: So that if and when it does need to intervene more aggressively in disputes like the current conflict between the federal government and Texas, there are no serious doubts that it can and should resolve them.

Abbott and the river are not the problems you are looking for.