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  • U.S. vs TX, Forget Invasion, It’s the Tenth Amendment

U.S. vs TX, Forget Invasion, It’s the Tenth Amendment

William L. Kovacs

May 2024

U.S. vs TX, Forget Invasion, It’s the Tenth Amendment

Litigation between Texas and the United States over Texas’s right to defend itself by securing its border with Mexico from the onslaught of illegal immigration addresses momentous yet unexplored constitutional issues. Can Texas defend itself? Can the federal government force Texas to absorb the financial and social cost of illegal immigration?

While U.S. Supreme Court precedent finds these types of disputes non-justiciable political questions to be resolved by Congress, there is legal precedent under the Tenth Amendment that likely shifts the responsibility for and cost of illegal immigration from Texas to the federal government.

Has Texas been invaded? Texas hangs its cowboy hat on two provisions of the Constitution, Article I, section 10 (“Compacts clause”) and Article IV, section 4 (“Guarantee Clause”). The Compacts Clause prohibits states from engaging in war unless the state is invaded or “in such imminent danger as will not admit of delay.” The Guarantee Clause mandates that the United States guarantee each state a Republican form of government and “protect each of them [states] against invasion.

The Keyword in both clauses is “invade,” or derivations of the term.

The few etymologists dissecting these terms conclude that millions of illegals entering the U.S. is not an invasion. A study by The Tenth Amendment Center traces the term from the first English dictionary in 1755 to the present. The term “invasion” has been consistently characterized as a foreign military power equipped with weapons intending to commit physical violence against another country.

A Texas Public Policy Center study, “The Meaning of Invasion Under the Compact Clause of the U.S. Constitution” (2022) study concluded that when the Constitution was drafted, the term “invade” involved two core concepts: entry and enmity (intent to act in armed conflict). The Foundation’s definition of invasion includes state and non-state warfare that seeks to” overthrow the lawful sovereignty of the state.” Under this reasoning, cartel activities could be an “invasion” if Texas can establish violent intent to challenge its sovereignty.

The Supreme Court has been reluctant to address cases involving the Compact and Guarantee Clauses. In Luther v. Borden, 1849, the court was asked to determine the lawful claimant to the Rhode Island government due to an insurrection. The court held the Guarantee Clause is a legislative power residing in Congress; therefore, it is a non-justiciable political question.

In 1912, corporations in Oregon argued that a state law authorizing initiatives and referendums violated the Guarantee Clause since it allowed a popular vote, which is contrary to a Republican form of government. The Supreme Court again held the issue to be a political question. In 1956, Congress delegated its powers to resolve violent conflicts to the President.

In 2023, Texas sought to void Department of Homeland Security (“DHS”) enforcement guidelines. Texas argued that by prioritizing the arrest and removal of noncitizen suspected terrorists, DHS violated federal law by not arresting and removing a more significant number of illegal immigrants. The court dismissed the case for lack of standing since DHS did not prosecute any of the states litigating the issue.

To avoid defeat, Texas could assert its Tenth Amendment rights: “powers not delegated to the U.S. by the Constitution, nor prohibited to the States, are reserved to the States respectively, or to the people.” While the Supreme Court generally dismisses 10th Amendment cases by finding implied constitutional powers to support almost all federal actions, it has recognized limits to federal power over states.
In a 1992 case, New York vs. U. S., the Supreme Court chiseled a Tenth Amendment path for states to defeat claims of federal authority. In that case, Congress enacted legislation mandating that states dispose of all low-level nuclear waste generated within the state or take title to all the waste, including liability for its long-term disposal.

The court held that while Congress had the authority under the Commerce Clause to regulate low-level nuclear waste, it only had the power to regulate the waste directly. As such, Congress sought to commandeer New York’s legislative process, a power that violates the 10th Amendment.

The Federation for American Immigration Reform estimates that illegal immigration costs states $116 billion annually and Texas $13.4 billion annually.

Similar to New York v. U.S., the federal government is de facto commandeering state legislative and appropriation processes by making states responsible for the cost of managing federal immigration policy. While the Supreme Court may view controversies under the Compacts and Guarantee clauses as non-justiciable, it cannot avoid federal actions forcing states to assume the massive cost of illegal immigration. If the federal government has the sole power to regulate immigration, as it claims, it must exercise such power directly and pay for it.

William L. Kovacs, author of Devolution of Power: Rolling Back the Federal State to Preserve the Republic. His previous book, Reform the Kakistocracy, received the 2021 Independent Press Award for Political/Social Change. He served as senior vice president for the U.S. Chamber of Commerce and chief counsel to a congressional committee. He can be contacted at [email protected]


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  • Supreme Court Rules Some States More Equal than Texas

Supreme Court Rules Some States More Equal than Texas

William L. Kovacs

January 2021

Supreme Court Rules Some States More Equal than Texas

January 6, 2021, the electoral college elects Joe Biden the 46th President of the United States. The Republic still stands, although worse for wear due to the siege of the Capitol and the fact one-third of citizens lack trust in the election results. Polarization will intensify dramatically due to “Big Tech’s” purge of conservatives on social media and its de facto synchronized shutdown of Parler.  If the Democrats allow Big Tech’s communication blackout of conservatives to continue, the Achilles Heel of democracy will be the U.S. Supreme Court’s decision in Texas v Pennsylvania that some states have more standing in the union than others, which makes some states more equal than others. This decision eliminates the ability of states and their attorneys general to protect citizens, even citizens that move to states seeking freedom from oppression in other states.

By failing to provide any explanation for denying Texas an opportunity to prove its citizens were denied the same voting rights as afforded other states, the Supreme Court took away the right of a state to argue for its equality in the union, at a time when it needed to instill trust in government.

The U.S. Supreme Court’s summary dismissal, for lack of standing, of the lawsuit brought by Texas and supported by 18 other states, to overturn the asserted fraudulent election practices in PA, WI, MI, and GA, is inconsistent with its seminal decision on the standing of states. In Massachusetts v. EPA, the court ruled “…States are not normal litigants’ for the purposes of invoking federal jurisdiction.” States “… retain the dignity…of sovereignty… [and are] entitled to special solicitude in our standing analysis.”

More troubling, however, by refusing to explain its decision, the court misleads the American people on the constitutional responsibilities of state legislatures and Congress in the electoral process.

Before getting to the substance, however, media gossip suggests there may be a simple explanation for its actions? Is chief justice Roberts being influenced by the liberal media’s warning of damage to the court? Is he influenced by the “unidentified mobs” who threaten to riot? Or does he vote, however necessary, to avoid any suspicion of voting ideologically? As one commentator “freely admit[s]” he writes to pressure Roberts to acquiesce to threats. The fact that opinion writers believe Roberts is influenced by criticism creates the very distrust of the judiciary the chief justice wants to avoid. If these rumors are even slightly true, Democracy is at great risk.

An alternative constitutional approach the court could have taken without helping Trump, if that was its concern, would be to dismiss the case as a “political question.” The Supreme Court could have avoided deciding the controversy by explaining the constitution and federal statutes commit “the issue to a coordinate political department,” i.e., state legislatures and Congress. By taking this approach the court would have clearly informed the other branches of government it was their responsibility to resolve the conflict as guardians of the Constitution. Could it be the Supreme Court relied on “standing” rather than “political question” to maintain the appearance of an all-powerful court, rather than acknowledging the limits of its power? According to Professor Tokaji, there are “…no federal laws allowing judicial contest proceedings over disputed federal elections.”

Another failure of the U.S. Supreme Court was a complete lack of consistency in the handling of presidential election disputes.

The U.S. Supreme Court decided two disputed presidential elections (2000 and 2020) in diametrically different ways.  In the 2000 electoral dispute in Bush v. Gore, Florida’s 25 electoral votes were in dispute over the validity of incompletely punched paper ballots.  These ballots were being counted differently by different election officials. The U.S. Supreme Court directly usurped Florida law by blocking the Florida Supreme Court’s order authorizing a recount. It also found the Florida Supreme court’s order standardless, a violation of the Constitution’s equal protection clause. The court noted, “Having once granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”

In 2020, Texas petitioned the U.S. Supreme Court alleging that the four contested states failed to provide equal protection to voters and electors in other states by counting votes in a manner contrary to the state legislatures as directed by the constitution. If the equal protection clause protects the votes of Florida citizens in different counties, as in Bush v Gore, it is essential that equal protection applies to the votes of presidential electors in different states, since it is the combined weight of their votes that elect the president. Simply, each elector’s vote must be equal to the vote of electors in other states, otherwise, the votes of electors from different states have different weight in electing our president.

The electoral college consists of 538 electors. To win the presidency, the candidate must receive 270 electoral votes. Citizens do not vote for president, state electors do. Most state legislatures select electors based on the winner of the popular vote in their state.

Using Pennsylvania as an example, its legislature allowed all votes to be counted if the votes were received by 8 pm on election day. Contrary to state law, state election officials counted votes received for three days after the election. The petitioning states like Texas counted only votes cast on or before election day. Texas followed the intent of its legislature.  The four defendant states followed the rules of election officials and state courts. This disparate process raises equal protection concerns.

Immediately after the Supreme Court’s decision, Colonel West, chairman of the Texas Republican Party, suggested: “…law-abiding states should bond together and form a Union of states that will abide by the constitution.” His comment acutely captures the fact one set of states operates according to state legislative intent while others disregard state legislative intent, a distinction the Supreme Court failed to recognize.

West’s suggestion, creating a compact of states that follow constitutional directives, is sanctioned by the Compacts Clause, Article I, section10, of our Constitution. Presently, a group of 15 Democrat states is forming the National Popular Vote Interstate Compact to require all states in the compact to cast their electoral votes for the winner of the national popular vote, notwithstanding the winner of the election in any specific state. The Democrats’ compact, when ratified by states having 270 electoral votes, would elect presidents by the national popular vote, a radical change to the current electoral college which assigns electoral votes by the winner of specific states.

By ruling states have no standing to challenge the different standards for selecting electors in the respective states, the U.S. Supreme Court sanctions an electoral process that allows electors from different states to cast their votes for president based on different standards, some established by the state legislature, others by unelected election officials and perhaps soon, by interstate compact.

Ensuring the votes of electors in the respective states are all equal when cast is essential to electing a president since citizens can only vote for electors.

How does a Republic continue governing itself if some states are more equal than others?