It’s not often that you see a U.S. Supreme Court dissent cited in an official document that purports to lay out a legal rationale for taking action. After all, while the dissents are valuable for following the legal reasoning, pored over by academics and historians and used by the majority to write its own opinion — often while attempting to refute the dissenters’ concerns or legal arguments — they are pointedly not law.
Dissents do not carry any weight of law, and in fact exist solely to register a justice’s opposition to the ruling that does actually hold that weight.
No issue for Texas Gov. Greg Abbott, who’s made a bad habit of ignoring or misunderstanding the law. In a release, the governor cited Justice Antonin Scalia’s dissent in the case of Arizona v. United States— the result of that state’s infamous SB 1070, a precursor to Abbott’s own efforts to subvert the federal government’s control over immigration — in arguing that the Constitution acknowledges “the States’ sovereign interest in protecting their borders.”
That was, of course, not the high court’s decision, and in fact the court slapped down Arizona’s attempt to preempt federal powers on immigration. Abbott, of course, knows this, and this inclusion can best be understood as more of a provocation, which the entire document practically is. We’re not the only ones to have noticed that the first line about the federal government having supposedly “broken the compact between the United States and the States” very closely echoed language that was used by secessionist states in the run-up to the Civil War.
True to form, Abbott goes heavy on the militaristic language, arguing that he is invoking his state’s right to self-defense and restating that he has officially declared the state under invasion, an invasion that the Biden administration has done nothing about. All of this teeth-gnashing in response to a simple Supreme Court ruling affirming that federal Border Patrol agents were allowed to cut through concertina wire deployed, probably illegally, by state personnel.
That Abbott’s entire reasoning is firmly rooted in obvious falsehoods — the asylum seekers entering the country are doing so pursuant to a flawed but existing legal mechanism, the Biden administration has maintained or reinstated several Trump-era border restrictions and so on — is neither here nor there. The governor doesn’t really care about the facts at issue and he never has.
This is about saber-rattling, and it’s increasingly looking like its purpose goes beyond short-term political posturing. This is the language of a zealot, someone who truly was not joking when he recently lamented to an interviewer that the state of Texas could not simply murder migrants. It’s also a direct challenge to federal authority, no longer tacit or de facto or good-as, but an explicit, straightforward assertion that Texas will not comply with federal law and will utilize armed agents to violate it.
So, President Joe Biden, call his bluff. If Abbott thinks that his National Guard units are Texas’ own troops, federalize them. If he cares little for the feds’ contribution to law enforcement, withhold public safety grants. If the governor believes that Supreme Court dissents are equal to decisions, begin offering federally-support abortion services in the state. Let’s see who laughs last.