No, Texas Has Not "Defied" The Supreme Court

Perhaps Governor Abbott will flout a directive from the Supreme Court in a future case, but reports of Texas "defying" the Supreme Court are bunk, and many making such claims should know better.

There is quite a bit of hyperbole about immigration policy and the southern border these days. To take one prominent example, Texas Governor Greg Abbott suggests there is an "invasion" of illegal immigrants that justifies state action under the Constitution. As a constitutional matter, this is not true.

It is not just politicians who are engaged in false, hyperbolic statements, however. Journalists and purported experts are doing it too, such as those who claim that Texas is "defying" the Supreme Court by continuing to put up c-wire on state and private land near the border with Mexico. According to these accounts, because the Supreme Court lifted an injunction that barred the federal government from removing c-wire where necessary for immigration enforcement activities, Texas is flouting the Supreme Court by continuing to place c-wire on state and private property. This is not true either.

In the relevant case, Department of Homeland Security v. Texas, Texas is suing the federal government, in tort, for the destruction of state property (c-wire barriers and the like). The district court generally concluded that Texas was right on the facts, but wrong on the law, because Texas could not seek money damages from the federal government due to sovereign immunity. The U.S. Court of Appeals for the Fifth Circuit enjoined the federal government from taking additional actions that remove or destroy c-wire barriers on state and private land, save where such actions were necessary to address a medical emergency, pending additional proceedings. Among other things, the Fifth Circuit concluded Texas would be likely to show the federal government had waived its sovereign immunity under 5 U.S.C. Section 702.

All the Supreme Court did (in this order) is eliminate this injunction—likely because it concluded that the federal government is likely to prevail on sovereign immunity grounds. It did not rule on—indeed, it was not called to rule upon—the lawfulness of anything Texas is doing. Nothing in what the Supreme Court did told Texas to take or refrain from any action.

But don't just take my word for it. Here is what Professor Steve Vladeck (no fan of the Abbott administration) wrote in his "One First" substack newsletter:

perhaps the most important thing to say about the order is how little it actually resolved (someone really ought to write a book about why this is a bad thing): By vacating the Fifth Circuit's injunction, the Court effectively protected the federal government from contempt sanctions if it continues to remove the razor wire that Texas has placed along the border—and nothing more. Thus, nothing Texas did or said later in the week was "defying" the Court's ruling; much like President Jefferson and Marbury v. Madison, there was no real way Abbott could defy such a modest ruling because it wasn't directed at Texas in the first place. Instead, as explained in more detail below, the real legal disputes between Texas and the federal government at the border remain very much open and unsettled (and are likely to only escalate further, given the politics of the moment).

As Vladeck notes, there are other pending cases that challenge the lawfulness of actions Texas has taken that conflict with the Biden Administration's immigration policy enforcement choices. One of these cases challenges a new immigration law in Texas that looks highly suspect under Arizona v. United States, a 5-4 decision from 2012 in which the Court concluded that many state actions to enforce federal immigration laws are preempted. If courts rule against Texas in those cases–and I suspect they might–and Texas does not stand down, then it will be appropriate to call out the Lone Star state for defying the Supreme Court. But that is not what has happened yet, and it is irresponsible for journalists and others who should know better to say so.

Governor Abbott may be reckless and cavalier, particularly with his rhetoric, but he's no Judge Aiken (at least not yet).