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.

NEXT: SCOTUS Denies Cert in Richard Epstein v. Barack Obama

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  1. Well maybe Texas can impose economic sanctions on California or California made goods. That ought to ire the feds enough to get it into court.

    1. Or restrict Californians driving on their roads.

    2. Works for this Californian. I am happy to not serve Texans.

      1. So, serving china instead?

  2. You mean the jurisdiction that looked at Oklahoma's "pray for rain" solution to a drought crisis and thought "yeah, we'll do that too"? The state that elected Rick - oops - Perry governor not once but twice? I'm sure there's many things great in Texas, but its government isn't one of them.

    1. As opposed to the state that decided making it a felony for a gay man to intentionally infect another perverted gay man with HIV was "stigmatizing" homosexuals?

    2. "not once but twice"

      3 times.

      At least political assassins in Texas don't serve a mere 12 years in prison

      BTW, is this your country?

      "Between 2013 and 2019, authorities wrongly accused an estimated 26,000 parents of making fraudulent benefit claims, requiring them to pay back the allowances they had received in their entirety.[1][3] In many cases, this sum amounted to tens of thousands of euros, driving families into severe financial hardship."

      "On 15 January 2021, two months before the 2021 general election, the third Rutte cabinet resigned over the scandal following a parliamentary inquiry into the matter, which concluded that "fundamental principles of the rule of law" had been violated."

      1. Yup. And you will note that when the prime minister got caught, he resigned. I know, it's a crazy idea, public officials resigning when they get caught doing wrong.

    3. Complain all you want about what you're perception of Texas is, but as someone who has lived in both state, and has very recently driven through both states I will tell you, Texas is much better governed than California.

      Roads are better, schools are open, gas is cheaper, no state income tax.

      And for all of Californian's vaunted compassion the homeless population seems smaller and in less of a distressed condition.

      1. Texas is basically a petro state. The only natural resources California has is earthquakes and forest fires.

  3. While I would welcome Texas' overthrowing California's government, I think they will have to settle for ignoring each other.

  4. On I-10 at the Arizona border, perhaps..

  5. How many competitive election cycles do the Republicans have left in Texas?

    1. More than you think, but I will concede things change.

      I was last a resident of Texas in 1993, at that time Ann Richards was the Democratic Governor, one of the 2 US Senators was Lloyd Bentsen, and the congressional delegation was 21-9 democratic.

      It certainly changed soon thereafter.

    2. Many and in fact a lot of Latinos in Texas are disgusted with the degenerate democratic party. But posit a win for democrats and you would see Texas devolve into California. Apparently democrats care little for good jobs and a robust economy and instead wish for increasing inflation, homelessness, poverty, and a weak backbone dealing with foreign aggressors.

      So keep dreaming Artie.

      1. Losing the culture war to your betters, and experiencing all of this damned progress, has made you cranky, buckleup. And delusional.

        You get to whine about this all you wish. But you will comply with the preferences of better Americans.

        1. "But you will comply"

          Spoken like a true tyrant.

  6. "Texas charged that California's travel ban."

    Uh, something missing from this sentence? Slow down, Professor. Proofread.

  7. Texas would have to resort to violence. What else do they have. The one with more money would win anyway.

    1. Have you looked at California's balance sheet lately?

  8. Remember: there's nothing certain but Death and Texas.

    ... says a California native half-Texan.

  9. We put NM and AZ in between but to no avail...

  10. I would love to the Governors or 20 Senators from any of the ten AB 1887 states really give it to the Californian reps publicly on this on something that mattered, like FFC, extradition, or some other mutual aid request. The California legislature/DNC can be told to go pound sand.

  11. These inter-state differences are mounting and getting more and more vitriolic.

    SCOTUS needs to stop being cowards and try to resolve these disputes instead of letting the resentment grow.

    1. I don't think we want to morph the DCC into a cudgel that the Supreme Court can use to fine-tune state policies.

      Look, if you want a uniform, national approach on any particular issue, the way to achieve it is through Congress. Send your reps, negotiate and pass legislation, get it signed by the President. That's our system. Using the DCC to stop states from adopting their own policies, where Congress has failed to act (usually due to Republican obstinance), just flips the federal system on its head.

      And will come back to bite the Republicans seeking to do it probably a lot sooner than they expect. I mean - do we want to talk about adopting tax and regulatory policies specifically designed to distort the internal economic activity of the U.S.? Are we sure that stands up under a muscular DCC jurisprudence?

  12. Plenty of sovereign nations have imposed boycotts or other economic sanctions on each other. If they were acts of war then the US would already be exchanging bombs with Iran, Russia, China, and lots of other rivals who are still, for now, just rivals.

  13. Josh, you are not a Texan. You are a New Yorker, by way of a second-rate legal education and not even a Supreme Court clerkship, who accepted the very first law professor job he could at a fourth-tier law school in Houston, and hasn't managed to visiting-professor his way out since.

    Bragging "don't mess with Texas" is, accordingly, not your prerogative.

    Anyway, the slight nod to Texas's brief independence period gives us occasion to reflect on how very poorly that went for those poor slave-owning Texans, who were really quite eager, when it came down to it, to join the safety and economic security of the United States. To say nothing of, um, losing the civil war.

    So, yeah - mediocrity and incompetence combined with braggadocio. Typical Texas. Your best parts are transplants from better parts of the country.

  14. The people of California may remedy this shortly by replacing Gavin Newsom.

  15. We all know who would win that conflict.

    Is such false bravado really necessary?

    Don't mess with Texas.
    Was a slogan about litter. It was a message to Texans to stop littering.

    Perhaps the next case will be a border wall along I-10.

    ... is this the part where you forget that one of the major reasons Texas doens't have much of a border wall is because of the objections of the Texans that own the land at the border? Or that the I-10 in Texas doesn't get close to the border for most of it's length? What a ridiculous suggestion.

  16. Texas could take Cali in 1-2 years of campaigning. First Texas would negotiate a passage agreement of forces with NM and AZ. Leaving from El Paso, Texas forces would move quickly into Phoenix area to be joined by NM and AZ friendly forces. These total forces would then split up with one army invading Cali between Joshua Tree and Mojave into the LA basin and cutting off LA making the Pacific around Oxnard or Santa Barbara cutting off Socal. the other column would take San Diego..(more likely San Diego would declare part of Texas and join the combined Texas, NM, AZ force. LA basin would then surrender pretty quick. After that the combined forces would march up the central valley area Bakersfield/Fresno to take Sacramento. with an amphibious landing north of the Bay Area taking Santa Rosa. The twin pincers would then lay siege to Sacramento for a few days until it surrendered. The Bay Area would then shortly surrender. Cali would be broken up into the States of So Cal with the capital in San Diego, Central California with the Capital in Yuba City and Northern Cali with the Capital in Eureka. The State govt legislature would be based on country senators..each county regardless of population would have two senators. NO assembly. A Texas appointed gov would be in the executive branch for five (5) years at that time an election would be held with ONLY the country Senators voting not the general population (which vote for their county Senators). Cali would of course have to pay all war debts incurred by Texas.

  17. If SCOTUS won't rule, I suppose Texas can retaliate anyway they want. I wonder what would happen if Texas were to prohibit ecportiy oil and petroleum products to California. The would include the oil used to lubricate train engines.

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