Dahlia, Akhil, Walter, Dawn, Dick,
I can’t help but think this morning that our splendidly serene breakfast table has been interrupted by the events of the day. I’ll admit my appetite is dampened by news that the U.K. has voted to withdraw from the European Union. Akhil, you mention that Britain is moving in the wrong direction—unlike our own Supreme Court and Senate, which aren’t moving very much at all! I see another parallel with our own affairs stateside: The Brexit fresh reminder that a union of sovereign states can always be jeopardized by an indignant dissenter.
Here in SCOTUS-land, we’ve witnessed a somewhat similar phenomenon on a smaller scale: Call it Texit. Walter, you mentioned that “in terms of producing Supreme Court litigation, Texas is the new Florida.” That might be an understatement. In modern times, has any state ever attempted to undermine federal power as consistently and angrily as Texas? This term, Texas has already managed to halt President Barack Obama’s immigration executive actions from taking effect, putting 4.3 million parents of lawful residents at risk of deportation. If the court affirms the constitutionality of its draconian abortion clinic restrictions, Texas will have set the baseline for other states seeking to regulate abortion out of existence. Texas’ one “liberal” cause, affirmative action, isn’t really Texas’ at all, but rather the University of Texas’—further reinforcing the divide between elite, progressive pockets and the embittered mainstream.
Texas’ campaign against immigrants—mostly Hispanic immigrants from Latin America—has especially alarming parallels to the Brexit, which was motivated in large part by anti-immigrant xenophobia. But if the state’s quest to keep out undocumented Hispanics isn’t ethno-nationalistic enough for you, just look back a term. Last year, Texas attempted to hamstring a key component of the federal Fair Housing Act by knocking out “disparate impact” claims, which allow minorities (in Texas, mostly black and Hispanic people) to challenge housing policies that disproportionately disadvantage them. Without disparate impact, Fair Housing plaintiffs would’ve had to prove discriminatory intent, a bar too high for many claims to clear. Texas wound up losing narrowly at the Supreme Court—yet the state is still refusing to remedy its housing segregation.
Oh, and internationalism? Texas knows exactly how to deal with that: Get the Supreme Court to kick it to the curb. Back in 2008, Texas Solicitor General Ted Cruz fought to free Texas of its obligations under the Vienna Convention and the U.N. Charter, as interpreted through a decision by the International Court of Justice. Cruz insisted that unless treaties include very specific “self-executing” language—words that indicate the treaty takes legal effect on its own—they are unenforceable in Texas court until Congress passes implementation legislation. Many treaties, including the U.N. Charter and the Vienna Convention, lack these magic words, because they were written with the presumption of self-execution. Yet six justices went for Texas’ theory—the conservatives plus Justice John Paul Stevens, for some unknowable reason. In the process, they may have undermined the authority of hundreds of other treaties that include phrasing similar to the U.N. Charter’s. The upshot of the decision was that Texas was allowed to execute a Mexican national after violating his rights under international law.
Of course, apart from some wild speculation by former Texas Gov. Rick Perry, the Lone Star State doesn’t appear likely to secede from the union any time soon. A Texit doesn’t appear very likely; unlike the Lisbon Treaty, the U.S. Constitution doesn’t contain a secession clause, as Akhil explains so beautifully in his most recent book. Still, today has me thinking about the unthinkable. After all, to paraphrase Walter’s insight from Breakfast Table 2012, the Supreme Court’s conservatives have spent years pushing the notion of “state sovereignty” to a dangerous new extreme. The far-right bloc already thinks states should be able to independently defend their own borders, using tactics that include harsh anti-immigrant policing in contravention of federal policy, in the name of sovereignty. Is a full-on Texit really an unimaginable next step?
Buying up pounds and Texas redbacks,