Time For a Red State Smackdown

Stock Photo, Alabama State Capitol

Last week I wrote about how red state governments have been testing the limits of federal authority and patience. Among the examples I discussed were Texas’s illegal use of buoys and razor wire along the Rio Grande and its intentionally inhumane treatment of migrants, and Alabama’s planned defiance of a Supreme Court order mandating a second majority Black or near-majority Black congressional district.

These stories are developing in a predictable, cynical way. Let’s walk through an update of where things stand and then discuss more broadly what is going on with each. 

Texas goes rogue, tests our limits

The images were seared into our collective consciousness: desperate migrants, many traveling with their children, trapped by dangerous wire, trying to pass their infants through it. One pregnant woman miscarrying while ensnared by that razor wire. Stories of Texas officials denying the migrants water, even in the extreme heat, then ordering them away from the floating barriers they had erected and back into the river, where some have already drowned. 

The reporting caught the attention of the Justice Department, which sent what amounts to a cease and desist letter demanding Texas remove the buoys. 

“The State of Texas’s actions violate federal law, raise humanitarian concerns, present serious risks to public safety and the environment, and may interfere with the federal government’s ability to carry out its official duties,” the Justice Department wrote. Specifically, the letter stated, “The floating barrier violates section 10 of the Rivers and Harbors Act, 33 U.S.C. § 403, which prohibits the creation of any obstruction to the navigable capacity of waters of the United States, and further prohibits building any structure in such waters without authorization….”

Legal experts uniformly agree that Texas doesn’t have much of a case. The federal government has jurisdiction over the navigable waters of the country, including the Rio Grande, and Texas can’t usurp that right. It also has authority and jurisdiction over immigration policy, including things like barriers. This case should be a slam dunk.

Nevertheless, yesterday Governor Abbott of Texas refused to comply with the Justice Department’s request, citing the state’s alleged “constitutional authority.” In a letter directed at President Biden, Abbott wrote,

To end the risk that migrants will be harmed crossing the border illegally, you must fully enforce the laws of the United States that prohibit illegal immigration between ports of entry. In the meantime, Texas will fully utilize its constitutional authority to deal with the crisis you have caused. 

“Texas will see you in court, Mr. President,” the letter stated.

Notably, in his letter Gov. Abbott cited the late Justice Scalia’s dissenting opinion in Arizona v. United States to assert that Texas had a “sovereign interest in protecting [her] borders.” But in the majority opinion in that case, decided 5-3 with Justice Kagan recused, the Court actually came out squarely against what Abbott argues. It nullified three of the four provisions of Arizona law because they either operated in areas solely controlled by federal policy, or they interfered with federal enforcement efforts. Justice Scalia was in the minority along with Justices Thomas and Alito. 

In asserting this right of “sovereign interest,” Abbott apparently is hoping to relitigate established law around whether the federal government or the states have ultimate authority over immigration enforcement. He is counting on three justices to join Alito and Thomas to undo the Arizona v. United States controlling opinion.

Before we worry too much that this far-right SCOTUS will play along, Abbott was very recently smacked down by the Court’s 8-1 opinion in United States v. Texas, decided this past term. There, Texas also had sought to insert its “state authority” into federal immigration policy to force the Department of Homeland Security to make more immigration arrests, something Texas claimed it should be ordered by the courts to do because it was “under-enforcing” immigration law.  

Writing for five of the justices, Justice Kavanaugh opined that the state of Texas lacked standing to sue the federal government and noted how the barn doors would be opened by a contrary result. “If the court greenlighted this suit,” Kavanaugh wrote, “we could anticipate complaints in future years about alleged executive branch under-enforcement of any similarly worded laws—whether they be drug laws, gun laws, obstruction of justice laws or the like. We decline to start the federal judiciary down that uncharted path.”

Three other justices—Barrett, Gorsuch and surprisingly even Thomas—concurred with the result, but on the ground that the courts were powerless to address the state’s grievances.

In short, Gov. Abbott recently lost, and badly, on this very question of trying to use state authority to force federal policy on immigration. That means he is well aware that his current stand is in contravention of established federal law, even from the Republican-denominated Supreme Court. 

As Greg Sargent opined in the Washington Post, Abbott’s actions boil down to performative politics. Sargent’s take is worth amplifying:

One of the more pernicious developments in our politics is the effort by red-state governors to assert outsize power over immigration in their states, in ways designed to appeal to national right-wing audiences….

[R]ed states like Texas — and Florida, whose governor, Ron DeSantis, is running for president — are waging their own war on migrants in their own ways. Abbott has bused migrants to urban strongholds around the country, and DeSantis flew migrants to Martha’s Vineyard, Mass. These moves are ostensibly about drawing attention to the challenges the Biden administration has faced in managing migration at the border. In reality they are about sending a message to Red America both that the border is a lot more chaotic and dangerous than it actually is and that GOP governors are taking a hard line where Biden will not.

The further truth is that the border issue is rapidly losing steam for the GOP because the Biden Administration’s policies are actually working. The twin prongs of creating more legal channels for migrants to apply for entry, while restricting desperate, physical asylum-seeking at the border, have resulted in a sharp drop in illegal entries—as much as 70 percent since the policies went into place.

By manufacturing humanitarian crises at the border, or by shipping off migrants to blue states as publicity stunts, Abbott is hoping to create a public sense of urgency around a controversy that is by all measures subsiding. And that sets up a bit of a balancing act. In response to these maneuvers, the White House, Democratic leaders and progressive organizations must be united in their condemnation, firm in their opposition, and unwavering in their compassion for the victims—all without giving too much oxygen to these dangerous stunts that use humans as pawns in sick, political games.

Alabama acts, well, like Alabama has always acted

Last week was the deadline for the state of Alabama to comply with a direct mandate from the Supreme Court: Draw a second congressional district in your state that is majority Black, or “something quite close to it,” in order to comply with the obligations of Section 2 of the Voting Rights Act.

We shouldn’t be surprised that the state has now defied a direct federal court order, but we should still be outraged.

At the urging of national Republican congressional leaders like Kevin McCarthy, the state legislature rammed through a non-compliant map, which was signed into law by Gov. Kay Ivey. That map drew a second district with a less than 40 percent Black population, hardly the “something quite close” to a majority demanded by the original three-judge panel decision affirmed by SCOTUS.

Gov. Ivey’s response is quite telling. She responded, “The Legislature knows our state, our people and our districts better than the federal courts or activist groups.” In other words, go away, you liberals and federal government types.

Plaintiffs in the case were understandably furious. “Let’s be clear: The Alabama Legislature believes it is above the law. What we are dealing with is a group of lawmakers who are blatantly disregarding not just the Voting Rights Act, but a decision from the U.S. Supreme Court and a court order from the three-judge district court,” they said Friday in a statement.

The contagion of court defiance on voting rights is spreading. Taking its cue from Alabama, the state of Louisiana, which had drawn racially gerrymandered maps of its own, is also back in court trying to get out from under a federal court injunction. That order had required Louisiana to draw a new Congressional district map in advance of a full trial challenging the existing maps. The order had been paused while the Supreme Court considered Alabama’s case, but after that opinion issued, the pause lifted and the order should have been obeyed. 

But Louisiana, like Alabama, is testing how far it can go and how much time it can run out on the clock. There are House elections next year, and the maps will need to be in place in time for the primaries. How the federal courts respond to blatant disregard of their orders will help determine whether these states get knocked down or whether they feel emboldened.

There are enough House districts at stake in the racial gerrymandering cases across the South to tip the balance of power toward the Democrats should the maps be drawn as ordered and in compliance with the Voting Rights Act. Cook Political, for example, moved five House races in the South toward the Democrats as a result of the Supreme Court’s ruling—the same number of seats as the current GOP House majority. 

The intransigence and defiance of these states shows how far Republicans will go to hang on to that majority, even if it means ignoring the mandate of the highest court in the land. The GOP base across the South cheers such moves, of course, which only reinforces such behavior by its leaders. As with cruelty to migrants, aggressive Black voter suppression is now a thing to be celebrated openly by an increasingly unhinged and extremist party.

It is unclear where this all goes if the Southern states simply refuse to obey the law. This recalls a time when the White House had to send federal troops to enforce federally ordered desegregation in the South, leading another Alabama governor, George Wallace, to infamously pledge 60 years ago at his inaugural address, “Segregation now, segregation tomorrow, segregation forever!” 

History will also remember and condemn the Alabama of 2023, which remains determined to lock Blacks out of fair representation despite their comprising nearly 27 percent of the state. The federal government must be prepared to stand on the right side of history once more and to enforce federal voting rights law against any Southern state holdouts. The next move will be in a federal court, which is expected to order new maps drawn by a special master. 

Then it will be up to Alabama officials to decide if they really want to take it to the next level.

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