The US Supreme Court's Razor Wire Decision and Governor Abbott's Defiance: Rejection of Judicial Supremacy and Undermining of the Rule of Law?

Türker Ertas

Dokuz Eylül University

Introduction

The conflict between the Biden Administration and Texas Governor Greg Abbott on the border policy has risen to a different level after the US Supreme Court’s recent interim decision in Department of Homeland Security v. Texas. The battle between the President and the Texas Governor on migration is no longer merely political but also constitutional and institutional. His recent defiance of the Supreme Court’s decision both stands for defying the legitimate authority of the federal government and condemning the principle of judicial supremacy. This kind of uprising from a “federated state” was previously seen in the 1950s and even during the Civil War Era. This means that the fundamental principles of American constitutionalism – namely the rule of law, judicial supremacy, and federalism – established through precedents and conventions over the decades are currently at stake.

The Background: The Political and Legal Battle between President Joe Biden and Governor Greg Abbott over the Mexican Border

Texas Governor Greg Abbott launched a controversial state-led, border security program named “Operation Lone Star” in 2021. Since then, the State of Texas has installed razor wires and floating barriers in the Rio Grande and added thousands of Texas state troopers to patrol parts of the State’s border with Mexico. On 22 January 2024, the US Supreme Court, in a 5-4 vote, granted the Biden administration’s request to vacate the Fifth Circuit Court of Appeals’ injunction regarding the razor wire placed along Texas's border with Mexico. The injunction relief of the Fifth Circuit restrained the Department of Homeland Security (DHS) from cutting Texas’ wire fencing at the US-Mexico border. This case was an appeal from the US District Court for the Western District of Texas, which had rejected Texas’ motion for a preliminary injunction. According to the Fifth Circuit's decision dated back to 19 December, the Border Patrol exceeded its authority by cutting Texas’s c-wire fence for purposes other than a medical emergency, inspection, or detention and thus, the federal government is enjoined from damaging, destroying, or otherwise interfering with the State of Texas’s c-wire fence across the Mexican border. Therefore, the US Supreme Court’s latest interim decision in Department of Homeland Security v. Texas has paved the way for federal agents to cut or remove razor wires established along the border.

Another attention-grabbing point comes to the forefront regarding the justices behind the Supreme Court’s decision as the Court consists of 3 liberal and 6 conservative justices at present; thus, any decision or judgment having a liberal character necessitates at least 2 (swing) votes from the conservative bloc of the Court. In the present case, Chief Justice John Roberts, and Justice Amy Coney Barrett provided that support. Four conservative justices – Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh – stated that they would deny the Biden administration’s request in order to keep the lower court’s decision in force. Texas Governor Greg Abbott justified constructing the razor-wire barrier as the federal government failed to protect the border against the “illegal migrant invasion” while the Biden Administration has strongly rejected that justification on the grounds that the border management is within the federal government’s competence.

The Conflict Escalates: Governor Greg Abbott’s Defiance of the Supreme Court Decision

The tension increased only days after the Supreme Court's decision as the Abbott administration, in clear defiance of the ruling, began to install more razor wire. He had already signalled such defiance by asserting that the federal government had failed to fulfil its constitutional duty to protect the southern border. Governor Abbott relies on Article 1, Section 10, and Clause 3 of the US Constitution, which reads in part, "No state shall, without the consent of Congress, keep troops in time of peace unless actually invaded." He justifies the fortification at the border on the ground that the State of Texas has the constitutional right to self-defence against the ‘immigrant invasion’. As the Texas National Guard has been installing more razor wire barriers at the border, GOP Governors Kevin Stitt of Oklahoma, Kristi Noem of South Dakota, Ron DeSantis of Florida, Glenn Youngkin of Virginia, and Brian Kemp of Georgia have all vowed that they stand with Abbott. The Republican-backed actions of Governor Abbott would not solely lead to a (de facto) supersedence of the state authority over the federal competence on border control but also an undermining of the constitutional principle of judicial supremacy by disregarding a Supreme Court decision.

Rejection of Judicial Supremacy: A Constitutional Crisis?

The battle between the White House and the Texas Governor over border control and Governor Abbott's defiance of a Supreme Court decision might put US politics into a turbulent period. There is nothing wrong with a state governor having dissenting policies with the federal government on issues such as migration and/or border control. However, disregarding a Supreme Court decision cannot be explained within a policy choice and, thus, it is beyond the policy lines. In this context, Governor Abbott's reaction towards the Supreme Court’s decision conjured up the southern governors' actions on the Supreme Court's segregation decisions in the 1950s. The most dramatic example in recent political history is the so-called "ping pong game” between the US Supreme Court and southern governors regarding the segregation policy. In the case of Brown v. Board of Education (1954), the Supreme Court unanimously ruled that separating children in public schools based on race was unconstitutional as it violated the Equal Protection Clause of the 14th Amendment. However, Arkansas Governor Eugene Faubus strongly rejected the decision, arguing a different interpretation of the Constitution. He even ordered the Arkansas National Guard to block the access of nine black students to Little Rock Central High School. In response, President Dwight D. Eisenhower mobilized the US Army's 101st Airborne Division stationed at Fort Campbell to ensure black students could safely attend lectures. In Cooper v. Aaron, the Court reaffirmed the Brown ruling and emphasized that state officials and legislators should be bound by the federal court rulings. In that regard, Gov. Abbott’s defiance of the Court’s decision and persistence in implementing his own border policy reflects a departmentalist approach to interpreting the Constitution, as it was the case for the southern governors on the segregation policy in the 1950s.

From a constitutional law perspective, this is quite problematic. Contrary to many continental European constitutions, the text of the US Constitution does not explicitly introduce judicial supremacy – by adopting a phrase such as “The decisions of the Supreme Court shall be binding upon public authorities and all administrative authorities and all courts at federal and state level”. However, this silence should not be understood as either state officials or state legislators having the power to disregard a federal court ruling by implementing their own constitutional interpretation. The principle of judicial supremacy is regarded among the essential features of the rule of law and modern constitutionalism. If every branch begins to implement its exclusive view of constitutionality, wouldn’t the principle of legal certainty be diminished? Then we would have several governors, congresswomen/congressmen and even judges, all relying on the superiority of her/his own interpretation. This approach also contradicts the fundamental principle of nemo iudex in causa sua (no one should be a judge in their own cause). As Alexander Hamilton depicted, the (federal) courts represent the "least dangerous branch" of the federal government because they have neither soldiers nor money to enforce their decrees. The power of judicial review is not based on policy but rather pronounces the words of the (constitutional) law. Any federal or state attempt to undermine the efficacy of the constitutional review would result in harmful consequences for American democracy, the supremacy of the Constitution and the principle of the rule of law. Within this context, Governor Abbott’s reaction towards the US Supreme Court decision not only means a challenge to the Biden Administration’s policies but also the undermining of constitutional principles, namely, judicial supremacy, rule of law and federalism.

 Dr. Türker Ertas  is an Associate Professor of Comparative Constitutional Law at Dokuz Eylül University, Faculty of Law, Department of Constitutional Law, and a Postdoctoral Researcher at Maastricht University Faculty of Law.

Suggested Citation: Türker Ertas ‘The US Supreme Court's Razor Wire Decision and Governor Abbott's Defiance: Rejection of Judicial Supremacy and Undermining of the Rule of Law?’ IACL-AIDC Blog (16 May 2024) The US Supreme Court's Razor Wire Decision and Governor Abbott's Defiance: Rejection of Judicial Supremacy and Undermining of the Rule of Law? — IACL-IADC Blog (blog-iacl-aidc.org)