RUTHFULLY YOURS

There is a great deal of moronic commentary accusing the State of Texas of defying the Supreme Court. In point of fact, the Supreme Court did not order Texas to do anything. It vacated an order by the Fifth Circuit that, during the pendency of an ongoing lawsuit between the feds and the state, barred federal authorities from cutting concertina wire that Texas has installed in parts of its 1,254-mile border with Mexico. That is, the Supreme Court (with no opinion, and over the objection of four justices, who also did not write) held that, for now, the lower courts may not prevent the federal authorities from dismantling barriers.

That Supreme Court action did not to direct Texas to do anything. The Court did not presume to tell Texas that it could not take action to protect its territory and exclude intruders — to have done so would have been constitutionally dubious for the reasons Justice Antonin Scalia explained nearly a dozen years ago in his Arizona v. United States opinion — which Governor Gregg Abbott has explicitly relied on, and which should be read, reread, and memorized. (Note: Abbott described the 2012 Scalia opinion as a “dissent”; it actually concurred in part and dissented in part with the Court’s multilayered decision.)

There is no doubt that the federal and state governments both have immigration- and border-enforcement authority. How they work out disputes, particularly under circumstances in which no attempt has been made by Congress in statutory law to prevent the lawful defensive measures Texas has taken, is a political question. This is vertical rather than horizontal separation of powers — collision between federal and state authority rather than presidential and congressional authority — but the dynamic is similar: The law’s preference is for the political officials who answer to the people whose lives are deeply affected to work it out.

Although I disagree with the high Court’s vacating of the Fifth Circuit injunction against DHS (our editorial leans that way, too), I think I understand why it was done (i.e., why Justice Amy Coney Barrett sided with the majority rather than with the other four conservative justices).

Border enforcement is a political duty, not a judicial one. It involves matters of security and diplomacy that are not within the judicial ken. The state government has border-enforcement authority, and the federal government has border-enforcement authority. The actor whose border-enforcement authority is questionable is the Court. I assume the Court was uncomfortable with federal judges’ telling the Biden administration how to carry out border enforcement; I assume the justices would be equally reluctant to endorse a court’s telling Texas how to do it.

In any event, no court has presumed to tell Texas that it may not erect more barriers. Texas can install more razor wire, even if the feds keep cutting it, until there is some resolution (the underlying case is on an expedited schedule before the Fifth Circuit).

This dispute will play out politically more than legally. The “Civil War” talk is hyperbole, driven by Democrats who grasp that Biden’s position is not politically sustainable, especially with Election Day just months away. This is why Biden is desperate to cut a deal with moderate Senate Republicans. When that falls apart — not because of Donald Trump’s machinations but because it is a terrible deal for the country — Biden will either have to cave (i.e., engage in actual border enforcement and refrain from interfering in state border enforcement) or seek election as the president who is suing the beleaguered people of Texas on behalf of illegal aliens — having ushered into the country more than 6 million of them (more than the population of 33 states).

If we’re going to talk about who is defying the law, that’s easy — it’s Biden, not Texas. When it is said that the states must comply with federal law, that means statutory law, not the whims of the executive branch. Biden’s policy is not federal law. Federal law, which the president refuses to faithfully execute, calls for detention. As I have explained before, Biden’s actions are in gross violation of the law.

To repeat: In Title 8, U.S. Code (which is where the immigration laws are), sec. 1225(b)(1)(B)(IV) states:

Any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed. [Emphasis added]

That is the presumptive rule. Even aliens who may have a valid “fear of persecution” claim are supposed to be kept in custody until that claim is adjudicated. They are not to be released into the United States. That is a congressional statute, and there is no plausible claim that it is unconstitutional. Therefore, the president’s sworn duty is to execute it faithfully.

There are two exceptions to the presumptive rule:

(1) Under sec. 1225(b)(2)(C), if an alien arrives on land “from a foreign territory contiguous to the United States,” the attorney general “may return the alien to that territory pending” a removal proceeding. This is the section on which Trump relied to establish the “Remain in Mexico” policy that (with Mexico’s cooperation) required aliens who tried to get in from Mexico to wait there until we could hold their removal hearings, which they were almost certain to lose. This stopped many aliens from making the perilous trip northward in the first place, so it is not only an eminently legal exercise of sovereignty, it is a humanitarian policy.

(2) Under sec. 1182(d)(5)(A), the attorney general may parole otherwise ineligible aliens into the United States but only “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” The next subsection is emphatic that this applies only to individual aliens and does not include mass parole:

The Attorney General may not parole into the United States an alien who is a refugee unless the Attorney General determines that compelling reasons in the public interest with respect to that particular alien require that the alien be paroled into the United States rather than be admitted as a refugee. [Emphasis added]

So, that’s what the law says: Aliens who are apprehended trying to enter our country illegally are supposed to be detained. The only alternatives are (1) return to contiguous country to await removal hearing or (2) parole based on individual circumstances if supported by compelling U.S. interests.

The mass-parole authority that Biden has claimed does not exist.