Ominous Portents

Dear Readers, In the vitriol coursing through our public discourse, the evolution of our fundamental understanding of government is threatened.

As we emerged from the Revolution, our first attempt at self-governance was a disaster. The Articles of Confederation was a 13-member “Tower of Babel” statelets pulling in opposite directions. The national government was feckless.

Our Founders quickly pivoted, devising a power-sharing structure with a strong federal presence. States ceded significant (but limited) power to a national government while retaining a modicum of self-rule. Essentially, states are vessels of sovereignty, some of which are dispensed to a national government.

The structure is a “three-stooled” mixed form of government, further diluting power amongst Congress, the President, and the judiciary. As originally designed, it would be hard to label it purely democratic. Senators were appointed by each state, Presidents were elected by the Electoral College, and only House Representatives were directly elected … by white, male landowners — hardly a model of democracy.

We have progressed towards a more democratic model with direct election of Senators and expansions in the eligible voting electorate. We have evolved as a nation, thanks largely to our deference to the Supreme Court and the rule of law.

The Supreme Court, an unelected body of jurists, molds our government in the cases it chooses. Core legal principles with long-term social repercussions are selectively reviewed. It uses its power of judicial review to define and redefine government.

The Supremacy Clause in the Constitution makes it clear… national government action supersedes state action, while the 10th Amendment jealously reserves states’ power to act whence there is no allocation of federal power, which should make it clear that if the federal government chooses to act on immigration, its will must be obeyed. Thus, the Supreme Court has spoken.

Congress has created a web, albeit broken, of immigration laws and processes. Governor Greg Abbott and the State of Texas demand this broken system be fixed. Because Washington is paralyzed by political division, it has taken border enforcement into its own hands. Texas has erected river barriers in the Rio Grande and razor-wire to keep migrants out … razor-wire, which also keeps border patrol agents from reaching the migrants, even when they are in distress unless they cut through it. Governor Abbot has deployed state officials to arrest border agents doing so, trying to do their job, asserting a state authority to border control superior to our national policies.

A simple read of the Constitution should result in Governor Abbott’s mischief being swiftly and legally shredded. So found the District Court Judge hearing the Biden Administration’s petition to halt Governor Abbott’s efforts while also criticizing the Biden Administration efforts. Texas appealed the lower court ruling to the 5th Circuit Court of Appeals, which overturned the lower court’s injunction, which itself was stopped by an appeal to the Supreme Court and the trial court injunction was reinstated.

What Texas is trying to do at the border cuts against the nature of our shared sovereignty. You have a state acting solo, defying federal interests. Texas seems to be digging its heels in and is ignoring the injunction, pressing forward with its “war” against the federal government, defying the rule of law and the delicate balance of the Constitution. This threatens to unravel our respect for the judiciary.

In 1954, the Supreme Court ended segregation in our public schools. Three years later, a racist Governor (Orval Faubus) used every armed resource to bar the “Little Rock Nine” from attending public school in Arkansas, including its National Guard.

A President can “nationalize” a State’s National Guard, placing it under presidential control. President Eisenhower did just that and protected these children; he did so to enforce the Supreme Court decision, upholding the rule of law and enforcing the holding in Brown v. Board of Education.

President Biden faces the same conundrum. He can nationalize the National Guard in Texas and enforce respect for the judiciary or let Texas ignore a legal ruling.  

This is an ominous portent. This standoff threatens our national power-sharing edifice with Texas. A state thumbs its nose at the Supreme Court (a ruling affirming that it is enjoined), or the federal government bullies the state. Neither of these are optimal results.

More ominously, the Supreme Court order upholding the injunction as a 5-4 injunction. This suggests we are on the precipice of a redefinition of sovereignty, a road ahead fraught with danger and uncertainty.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County and a former Assistant State Attorney in Miami. Owner of Rockefeller Law Center, Jim has been in private practice since 2000. E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.

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