Transcript - Texas Border Crisis: What Republicans Get Wrong About Texas Border Case
Transcript - Texas Border Crisis: What Republicans Get Wrong About Texas Border Case
The Border crisis and the debate over what to do about it are some of the most divisive, hot-button issues at present. And when things get partisan and emotional you are bound to see a lot of bullshit coming from every side…. And this issue does not disappoint in the dishonesty and melodramatics. Today we are looking at a couple of these false claims and emotionally driven narratives surrounding he border dispute case DHS v Texas…
So, as I said a moment ago, these false narratives and untruths come from every side. And so, we will be looking at one false claim from both sides of the issue. For this video I had planned to fact check one questionable Republican claim and one questionable Democratic claim from the case DHS v Texas. I wanted to include both in this one video, however, by the time I got finished with the script for the Republican myth, it was too long to further add on to. So today, I will be taking a look at a politically biased legal claim from Republicans, regarding this border protection debate, then tomorrow I will release another video looking at a politically biased legal argument the democrats have made as a response to the Republican claim I will be discussing here today.
There have been some recent claims that have gone mainstream among Texas politicians and Republican members of the US Congress. But all sources seem to lead straight back to Texas Governor Greg Abbot. This is the idea that the illegal immigration happening constitutes an “invasion.” This immigration equals invasion narrative is one that Governor Abbot started disseminating early and often.
Now, it would be one thing if he was using the term “invasion” rhetorically. But the problem is that he has taken to characterizing the increased flow of undocumented migrants as an “invasion” and to claim that the Biden administration’s policies responding to this ”invasion” violate the Guarantees Clause in Article IV of the Constitution.
Here is a full statement that Greg Abbot issued last month on January 24th that elaborates on what he meant by that tweet:
James Madison, Alexander Hamilton, and the other visionaries who wrote the U.S. Constitution foresaw that States should not be left to the mercy of a lawless president who does nothing to stop external threats like cartels smuggling millions of illegal immigrants across the border. That is why the Framers included both Article IV, § 4, which promises that the federal government “shall protect each [State] against invasion,” and Article I, § 10, Clause 3, which acknowledges “the States’ sovereign interest in protecting their borders.” Arizona v. United States, 567 U.S. 387, 419 (2012).
The failure of the Biden Administration to fulfill the duties imposed by Article IV, § 4 has triggered Article I, § 10, Clause 3, which reserves to this State the right of self-defense. For these reasons, I have already declared an invasion under Article I, § 10, Clause 3 to invoke Texas’s constitutional authority to defend and protect itself. That authority is the supreme law of the land and supersedes any federal statutes to the contrary. The Texas National Guard, the Texas Department of Public Safety, and other Texas personnel are acting on that authority, as well as state law, to secure the Texas border.
I want to clarify that I am not taking a position either for, or against, the Governor’s larger point that the Biden administration’s border policies are bad. I do not intend to address this issue as it relates to policy and I have no interest in addressing this issue as a matter of policy.
The only thing I am speaking to here is whether or not the original meaning of the Guarantees Clause is consistent with his construction that “invasion” includes an increase of migrants illegally crossing our border. As well as whether the Compacts Clause (Article I, §10, Clause 3) is consistent with his construction that it acknowledges “the States’ sovereign interest in protecting their borders.”
I’m not one to play hide the ball, so I’ll just say, these claims are completely wrong. It cannot be sustained by any reasonable reading of the text of the Constitution, the original understanding of the Constitution, or subsequent interpretations of the Constitution by courts or constitutional scholars. Lets find out why.
Article IV and The Guarantee Clause
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.
This section is called the Guarantee Clause, because by its terms the federal government makes certain guarantees to the states. One of these— protection from foreign invasion—continued Congress’s prior obligation under the Articles of Confederation. This guarantee is related to the principle that although the several states are decentralized internally, it is to have a substantial, common foreign policy and be seen as a unified sovereign in international law.
Both the 1777 Articles of Confederation and the U.S. Constitution, composed ten years later, were not only frameworks of civil government but also, and critically, set out the terms of a military alliance between sovereign states confronted by external (and occasionally internal) military threats. We are going to be exploring how the framers and ratifiers who gave the constitution legal force used the terms “invasion” or “Invaded” during the drafting and ratification debates to establish the original meaning of this word in that particular clause.
First, in a relatively small number of circumstances the phrase was used metaphorically, such as talking about “an invasion of our rights by the government”.
Second, in the vast majority of instances which are other than that first example, “invasion” and “invaded” always referred to brining the full and combined military might of the several states and the federal government to bear in cases where one or several states faced an armed invasion from a foreign power.
For example, at the outset of the Convention, Virginia Governor Edmund Randolph criticized the so-called New Jersey Plan for a new constitution by maintaining that its strong legislature and weak executive would yield military weakness. He said:
Originally, our Confederation was founded on the weakness of each state to repel a foreign enemy; and we have found that the powers granted to Congress are insufficient. The body of Congress is ineffectual to carry the great objects of safety and protection into execution. What would their powers be over the commander of the military, but for the virtue of the commander? . . . [Congress are] too numerous for an executive; nor can any additional powers be sufficient to enable them to protect us against foreign invasion.
Later in the Convention, Massachusetts delegate Rufus King observed of the constitution under construction:
“What are the great objects of the Genl. System? 1. difence agst. foreign invasion. 2. agst. internal sedition.” (emphasis added).
One could perhaps say, that these points are general proclamations about the new scheme of government being debated, in the abstract, there is no reason to assume this language applies specifically to the Guarantees Clause. Fair Enough.
However, despite the fact that Governor Abbot begins with vague claims that somewhere at some point in some way James Madison and Alexander Hamilton definitely, probably maybe possibly agreed with the governor that Article IV was something they definitely contemplated as applying to the impossibly anachronistic issue of illegal cartels smuggling millions of people across the border. Now, I would contend that James Madison and Alexander Hamilton provably understood that clause to specifically and uniquely refer to armed invasions by foreign powers, requiring a military defense to face the hypothetical military threat. The only difference between Governor Abbot’s claims and mine is that I can back up my claims with evidence.
Such as Federalist 44, where James Madison is SPECIFICALLY elaborating on the original understanding of the Guarantees Clause:
No State shall, without the consent of Congress, lay any duty on tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war unless actually invaded…
Throughout the Constitutional Convention and the state ratification debates that followed, delegates and commentators used the term “invasion” over and over. The word invariably refers to a hostile armed incursion into or against the territory of the states or the nation, an incursion that must be met with a military response.
When it comes to Hamilton, one good example would be at the Convention, when Hamilton disparaged continental examples of loose federal systems by saying:
Let us examine the federal institution of Germany. It was instituted upon the laudable principle of securing the independency of the several states of which it was composed, and to protect them against foreign invasion. Has it answered these good intentions? Do we not see that their councils are weak and distracted, and that it cannot prevent the wars and confusions which the respective electors carry on against each other?
This use and understanding of the term “invasion” in the text of the Constitution doesn’t just come from the guarantees clause.
The word “invasion” or “invaded” appears in four clauses of the U.S. Constitution, all of which relate to the military alliance aspect of the Constitution, or what we might now call its national security architecture. Whether considered individually or collectively, these four usages plainly refer to a hostile armed incursion into or against U.S. territory. Indeed, they cannot reasonably be understood any other way.
Obviously the first is the guarantee clause of Article IV, itself, which contains the basic security guarantee that provided a primary inducement for the states to join in a constitutional union with strong national powers – the guarantee of mutual defense against both “invasion” from without, and upon special request, against “domestic violence,” i.e., insurrection or violent civil disturbances, from within.
In Madison’s discussion of Article IV in Federalist 44, he emphasizes that states require “protection against invasion” by both “foreign hostility” and potentially even aggressive fellow states of the union. Throughout Federalist 44, he speaks of both invasion and insurrectionary “domestic violence” as “bloody” events involving “military talents and experience” and “an appeal to the sword.”
Article I, Sec. 8:
The Congress shall have Power … To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.
This clause prescribes the mode of military organization that the Founders – who opposed the maintenance of a national standing army – imagined would be employed to defend the nation and individual states against internal insurrections and foreign invasions: the power of the congress to call state militias into national service.
Article I, Sec. 9, cl. 2:
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
Article I, Section 9, concerns the basic Anglo-American right of habeas corpus – that is, the right to demand that a court determine whether there is a legal basis for criminal arrest and detention of every person. Section 9 decrees that this right can only be suspended in cases of “Rebellion or Invasion.” This special exception for rebellion and invasion recognizes that in times of actual armed conflict, normal legal protections may have to be suspended.
Article I, Section 10, cl. 3:
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
Section 10 of Article I reserves to the national government exclusively the conduct of foreign policy. It also prohibits states from maintaining regular armies and navies in time of peace, and absolutely bars them from “engag[ing] in War, unless actually invaded, or in such imminent danger as will not admit of delay.”
In other words, the constitutional response to “invasion” is “war.” Section 10, when read together with the provision of Article I, Section 8, that grants Congress the power “to declare war,” confers the responsibility for national defense – for making war – on the national government. The Constitution leaves only one narrow exception for emergencies in which states can “engage in War” if they are “actually invaded” or under imminent threat of invasion or a “Danger” so great that it would merit war in response. Even then, the plain implication of the opening requirement of consent of Congress together with the concluding exception for dangers that “will not admit of delay” is that even a state “actually invaded” cannot make war on its own indefinitely, but must appeal to Congress as soon as possible for its consent and support.
Compacts Clause
Even though I have just demonstrated that the term invasion in the compacts clause refers to an invasion to which the proper response is to wage a war, which should obviously necessitate an invasion by armed military forces of a foreign power, really we could stop analyzing this clause right here. But there is one more point I want to address, because, disproving his interpretation of “invasion” is pretty straight forward. Anyone could have disproven that claim for themselves in a matter of minutes if they simply took the time to do so.
But when governor Abbot brought up the Compacts clause, he used an old lawyers trick, which was to define its meaning by relying on a Supreme Court case. This should be no surprise he would employ an old lawyers trick, since the governor is an old lawyer. For those who may not be familiar, before Greg Abbot was governor of Texas he had a distinguished legal career, including five years as a justice of the Texas Supreme Court and over a decade as the attorney general of Texas and he is employing several tricks that would be hard to spot and untangle without a background in law. It is not uncommon to find this legal sleight of hand employed in constitutional law arguments, but by the time you finish watching this video you will have no problem spotting these tricks for yourself whenever you come across it in the future. Let’s take a quick look at the relevant portion of Governor Abbot’s January 24th letter once again:
That is why the Framers included both Article IV, § 4, which promises that the federal government “shall protect each [State] against invasion,” and Article I, § 10, Clause 3, which acknowledges “the States’ sovereign interest in protecting their borders.” Arizona v. United States, 567 U.S. 387, 419 (2012).
The first thing you should notice is that he has explained the Guarantees Clause with the actual text of the clause, whereas, he does not include the text of the Compact Clause, just a case citation that you are left to infer is an authoritative interpretation of what the Court says the Compact Clause means. That sort of flip-flopping between specifics and generalities should be a big red flag. When we put the text he included and the text he did not right next to each other, the reason he declined to do this is immediately apparent.
The United States shall… protect each [State] against invasion.
~Article IV, § 4
No State shall… engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
~Article I, § 10, Clause 3
With the guarantees clause, the wording is vague enough that it’s not immediately apparent his interpretation is wrong. By comparison, the Compacts Clause is facially inconsistent with his proposed interpretation. Either, this clause confers a right for States to defend their borders from an armed military invasion, or Governor Abbot is suggesting Texas has the right to keep, unarmed migrants from illegally crossing the border by deploying the military to shoot them the moment they set foot on Texas soil. But wait, there’s more…
There is a second trick being employed here that is trickier to grapple with, it’s all about the way people employ Supreme Court opinions in a legal argument. Before we get to the trick I need to walk you through the steps to read a Supreme Court case citation & to identify the different parts that make up the full opinion of the court.
Most people see a quotation from a Supreme Court case, quoted rather authoritatively and simply assume that what they are reading was the decision of the Court. But often, and this is especially true here, nothing could be further from the truth. The first thing you need to do when you see a quote like this is look it up in context using the Supreme Court’s case reporter, which is called the United States Report. A case reporter is a publication containing the opinions of a particular court or jurisdiction, organized chronologically by date of decision. This requires the ability to read and apply a case citation to look up the case yourself. This includes:
The Case name, the volume of the US Report, the US Reporter abbreviation (which is how you distinguish a Supreme Court case from a citation by any other court, Supreme Court cases are always identified by the abbreviation “U.S.”, next is the case page, which is the first page of the opinion, potentially a pinpoint citation which shows where in the opinion the particular text being quoted is found and the year.
Now lets find these different points of information in governor abbots citation from Arizona v United States:
Arizona v. United States, 567 U.S. 387, 419 (2012).
A citation to a case in the United States Reports includes the following elements:
Name of the case (underlined or italicized and abbreviated according to Rule 10.2)
Volume of the United States Reports
Reporter abbreviation ("U.S.")
Case Page
Pinpoint Citation
You may need to include a "pinpoint" citation, which is a citation to the page(s) on which the specific material referenced appears. If you need to include a pinpoint citation to, for example, a quotation or the holding of a case, add the page number after the first page.Year the case was decided
Once you have pulled up the opinion of the court, you need to identify the parts of the case, which help focus your reading. On the show notes page for this episode I have included a link to the Arizona United States opinion being cited here, I would recommend everyone take a moment and go pull up that case brief from the link provided so you can follow along in identifying the different parts of the case in that relevant brief.
Don’t worry, you won’t miss anything, I’m just going to spend the next minute or two watching the hospital dance number form Breakin’ 2: Electric Boogaloo, so you’ll have plenty of time to go pull that case brief up without missing anything.
Typically, a U.S. Supreme Court opinion is comprised of one or more, or all, of the following parts:
Syllabus (Appears first before the main opinion of the court. It’s a summary of information the court includes to help readers understand the case and the decision. The syllabus outlines the facts of the case & the procedural history. The last portion sometimes summarizes which justice authored the various opinions in the case. It may also include the primary holding, which is the legally binding decision of the court.)
Main Opinion: This is the Court’s official decision in the case. In legal terms, the opinion announces a decision and provides an explanation for the decision by articulating the legal rationale that the justices relied upon to reach the decision.
Concurring and Dissenting Opinions: Often, there are multiple opinions within the document because the justices are not in agreement. Justices who agree with the result of the main opinion, or the resolution of the dispute between the two parties, but base their decision on a different rationale may issue one or more concurring opinion(s). Likewise, justices who disagree with the main opinion in both result and legal rationale may issue one or more dissenting opinion(s).
Once you have looked up the case itself, the first thing to note is that most people assume the majority opinion is legally binding. That’s only partially true. The only part that is legally binding is the Primary Holding. Often the primary holding is at the end of the syllabus.
As you can see on page 387 of the US Reporter Volume 567 we find the first page of the Opinion for the Court in Arizona v United States. You find the facts of the case, followed by the primary holding.
After the syllabus you find the main opinion of the court. Which in Arizona v US starts on page 392
This majority opinion doesn’t all get equal weight. It is only the decision of the court that is legally binding (this is the holding.) Everything outside of the primary holding, which are the explanations and legal rationales for the holding are considered dicta. Cornell law defines dicta as follows:
Dicta in law refers to a comment, suggestion, or observation made by a judge in an opinion that is not necessary to resolve the case, and as such, it is not legally binding on other courts but may still be cited as persuasive authority in future litigation.
While we could have determined that the citation Governor Abbot is relying on actually comes from a concurring opinion from Justice Scalia, the reason we read the majority opinion first was to establish context. Nothing in the majority opinion, neither the holding nor the dicta have any relevance to the Compacts Clause.
It’s important to understand that both concurring and dissenting opinions in a case are themselves considered obiter dictum, which means that, like the majority opinion, they may be cited as a persuasive, but not binding, authority in future litigation. But the most important part of that definition of dicta in this instance is perhaps the least obvious part.
They provide persuasive, but not binding, authority IN FUTURE LITIGATION.
This means the only place it is proper to bring up dicta authoritatively is as a matter of stare decisis.
But what he is doing is actually worse than irrelevant. While Justice Scalia’s concurrence begins on page 416
And I would recommend you read the entire concurrence if you are up for it. But if you remember, our pinpoint citation comes from page 419
We need to go there and read the quoted paragraph in context, because what it will make clear is that Governor Abbot is twisting the words of Justice’s Scalia’s dissent to say something that is entirely contrary to Scalia’s assertion. Here is the full relevant citation from Scalia’s opinion in context:
A later portion of the same section provides that “[n]o State shall, without the Consent of Congress, . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” Art. I, §10, cl. 3 (emphasis added). This limits the States’ sovereignty (in a way not relevant here) but leaves intact their inherent power to protect their territory.
~Arizona v Unites States, 567, U.S., 387, 419 (2012) (Dissenting Scalia, A.)
There is no way to deny that what Scalia is saying here is that, this limits the State’s power to make war while protecting their right to repel an armed invasion… but of course, that has nothing to do with any issue before us in this present case.
That’s pretty much all you need to know to look up any questionable or unclear cases where people may try to misuse Supreme Court precedent to support their unsupportable argument. Now to be clear, this is not the way I would recommend reading a full case brief De Novo (meaning from the beginning; without consideration of previous instances, proceedings or determinations.)
A friend of mine in the legal blogger community, De Civitate wrote an excellent guide to a De Novo reading of a Supreme Court case brief I would highly recommend, if that’s something you would like to dive into for extra credit.
Anyways, that’s really all I have for you guys today. Make sure to tune in tomorrow for my other video where we will be covering a questionable legal argument coming from the democrats on this same case. Which is why you should definitely subscribe to the channel… As well as doing all those other things that help to trigger Al Gores rhythm… With the liking and the commenting and the sharing my content on the social medias and what have you.
Until next time, this has been Bob, for Legalese, talking about what everyone gets wrong about the Texas border crisis case.
Of course, as always—
Cartago Delenda Est