The Volokh Conspiracy

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Can California and Texas now resolve their disputes "by self-help measures"?

We all know who would win that conflict.


In February 2020, Texas filed a motion for leave to fill a bill of complaint in the Supreme Court's original jurisdiction. Texas charged that California's travel ban was unconstitutional. The Golden State prohibited state-funded travel to Texas, and other states that adopted certain LGBT polices. Texas claimed this policy violated the Article VI Privileges and Immunities Clause, the Dormant Commerce.

The case lingered on the docket for more than a year. Today, the Court finally put the motion out its misery. Justice Alito dissented from the denial of Texas's motion for leave. Justice Thomas joined the dissent.

Parts I and II of the dissent reiterate Justice Alito's long-standing argument that the Court's original jurisdiction for state-state cases is mandatory. At this point, Alito and Thomas stand alone. The Court's newest members are not interested in adopting this argument.

Part III of the dissent sheds some light on the actual dispute. These two paragraphs are a joy to read for this adopted Texan:

In seeking to file its complaint, Texas argues that this is precisely the type of dispute for which our exclusive original jurisdiction was designed. Texas writes that "'the model case for [the] invocation of [our] original jurisdiction is a dispute between States of such seriousness that it would amount to casus belli [act of war] if the States were fully sovereign.'" Brief in Support of Motion for Leave To File Bill of Complaint 15 (quoting Texas v. New Mexico, 462 U. S., at 571,n. 18; first alteration in original). Texas notes that economic sanctions have often roiled international relations and have sometimes led to war. Brief in Support of Motion, 15–18. And Texas reminds us that the Founders were well aware of the danger of economic warfare between States. See id., at 15–16 (citing The Federalist No. 7 (A. Hamilton)).

The Republic of Texas was an independent nation for 10years (1836–1846), and the California Republic claimed a similar status for a brief time in 1846. If they were independent nations today, it is entirely possible that their dispute would be the source of considerable international tension. As sovereign nations, they might resolve their dispute by diplomacy, by submitting it to international arbitration, or by self-help measures. When they entered the Union, these two behemoths relinquished the full measure of sovereign power that they once possessed, see Franchise Tax Bd., 587 U. S., at ___–___ (slip op., at 13–15), but they acquired the right to have their disputes with other States adjudicated by the Nation's highest court.

Self-help between Texas and California? We all know who would win that conflict. Don't mess with Texas. Perhaps the next case will be a border wall along I-10.