A Broken Man and Broken Laws

(Offering up some additional thoughts here regarding Sunday’s piece Swimming to America. There was great response and feedback from subscribers and readers, who had read the forwarded article from friends and social media, and, as is often the case, I was hardly able to touch the topic in terms of issues. Below is a bit of a follow up for the midweek dispatch, which points out what is happening on the Texas border will likely reach a point where it affects the rights of every state and citizen in this country. - JM)

“The worst evils which mankind has ever had to endure were inflicted by bad governments.” - Ludwig von Mises, author

Human rights ought to take precedent over states’ rights in American government and the creation of laws. But the governor of Texas has little interest in what happens to people trying to reach America. In fact, it is not much of a stretch to suggest he is not the least bothered by a few immigrant deaths. They help to send a message back southward that he has made crossing the Rio Grande very deadly. Lives must be sacrificed to protect his laws.

The latest proof is a report from Customs and Border Patrol that Abbott’s concertina wire, strung all along the north bank of the Rio Grande near Eagle Pass and Del Rio, is making it difficult and dangerous for CBP agents to reach migrants in distress. The Houston Chronicle obtained an internal memo from the agency claiming migrants, unaccompanied children, and even agents were being put at risk by the razor wire. CBP officers recently discovered a family that had been trapped in the water four days because they had been unable to come up on the riverbank.

According to the document, the wire only increases the risks of drownings because it is often in the water, and when migrants are in distress, federal agents are confronted with having to cut through the concertina rolls to perform any rescues. This information, apparently issued by the Eagle Pass office of the CBP, comes just as the governor has begun creating a floating border wall in the middle of the Rio Grande. The wire, the memo says, creates a “high risk” of drowning and injury.

“Currently, there is no path forward if DPS continues to deploy the concertina wire,” the document claims.

What does that mean? Probably, it is the clearest indication yet that the CBP, a federal agency, cannot conduct its duties because the state of Texas is creating interference. Water rescues will also become more dangerous as the buoy wall begins to float because netting is involved in its design. People will likely get caught and then rolled under the flotation devices, unable to get back above the water. How will rescue craft safely approach? There will almost certainly be federal agents asked to risk their lives in situations that would not have existed without Greg Abbott’s river buoys.

The actions of Abbott and his extremist legislature ought to be challenged for violations of the Constitution. The simple act of putting up concertina wire, endangering agents, is a violation of the Supremacy Clause, which establishes that federal law takes supremacy over state laws whenever there is a conflict. Texas lawmakers, led by the governor, are clearly creating conflict between their immigration tactics and those federally mandated for CBP by congress and the Constitution. How are agents supposed to arrest, rescue, detain, process, and transfer undocumented immigrants when they have to cut through razor wire, get around military vehicles blocking roads, and now deal with a floating wall that will endanger federal employees as well as migrants?

There is also the matter of asylum. People in the river, who are seeking political asylum, have a legal right to enter the U.S. and make their claims. A river barrier, concertina wire, and soldiers and troopers armed with weapons patrolling between shipping containers lining the north bank, make it impossible to exercise their rights under U.S. law, which amounts to another violation of the Supremacy Clause by Abbott and his myopic followers.

The Tenth Amendment to the Constitution also clearly states that powers not delegated to the federal government are reserved for the states, but Congress obviously created a Customs and Border Patrol agency and the Immigration and Naturalization Service to provide services not relegated to state powers. Controlling borders and regulating immigration are, in fact, primary responsibilities of the federal government. Neither Greg Abbott, nor the Texas legislature, have any legal standing to decide the federal government has failed at its job and the state is taking over those responsibilities. The only reason this issue has not been adjudicated has to be political. No one wants to file the lawsuit because it might make them look weak on illegal immigration.

Or maybe there is a version out there already, wending its way through the legal process, up to the conservative Fifth Circuit in New Orleans, which will rule with Abbott and Texas, and it will be appealed to the U.S. Supreme Court and that will be the end of the Supremacy Clause and the Tenth Amendment. The Texas legislature has also been considering creating a new law that would provide penalties for people crossing the border illegally, which is tantamount to writing federal legislation and is a clear conflict with U.S. immigration law. The measure seems almost designed for another Supreme Court test of a state’s ability to pass laws governing illegal immigration. The court has already held no such authority exists for state’s to make laws regulating immigration in a case from Arizona, but that hardly bothers politicians like Abbott. The ruling does mean, however, if the behavior of Texas is to reach another high court argument, it will need a novel approach and styling of the lawsuit for any consideration by the justices.

Meanwhile, Abbott keeps breaking laws without even trying, including international treaties with Mexico. The Treaty of the Rio Grande, signed in 1970 to settle all boundary issues between the two countries, and predicate guidelines that there be no unilateral actions regarding barriers or levees. In fact, there are a minimum of six agreements that have bearing on the construction of tactical security infrastructure along the border, which include the 1944 Water Treaty, the 1983 La Paz Agreement, among others, and are not exactly trivial in terms of international law. Abbott’s floating wall is a violation of each of these signed documents, even in the most mundane of interpretations, because they individually limit unilateral implementation of tactical security infrastructure by U.S. federal authorities. Mexico is supposed to be consulted and work is to be coordinated regarding any implementations, a consideration not exactly on the mind of Abbott.

None of these issues even give consideration to immoral expenditures and environmental issues. Abbott and his consorts can readily find billions to spend on border paranoia but even with a $34 billion dollar estimated surplus in the state budget, lawmakers have been unable to allocate money for a teacher pay raise. Further, investment of those border billions to fight immigrants would be better spent on jobs and training and infrastructure to accelerate expansion of economies along the Mexican frontier. The money would also be well spent to invest in mental health care, which Abbott has suggested was the real cause of gun violence without any acknowledgement on his part that Texas is fiftieth in the country in that type of spending during his administration. Reopening rural hospitals, 26 of which have closed while he was governor, also would have a huge impact on Texans living outside urban regions while we rank last in health care and have the most uninsured citizens of any state.

The real issue here, though, is the conflict between the state government of Texas and the federal government in Washington. Because extremist officeholders in this state disagree with national policies, they believe they are empowered to take over responsibilities that the Constitution gives Congress to delegate. The struggle for authority under the law, and who wins it, has the potential to define whether we are one nation, under unifying laws, or a collection of independent states who can ignore whatever federal regulations we want if they cause us political displeasure.

And that’s a good way to ruin a country.