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Notes -
I don't think Biden and Garland's case here is nearly as strong as people keep saying it is.
The White House's argument rests entirely on a single assumption. Namely that it is illegal for a member of a Municiple or State Police force to enforce federal laws, Ditto military police (who are ordinarily considered federal cops) attached to the National Guard unless their command has been federalized and explicitly ordered to do so by the president.
That's not something that's actually written in a statute anywhere, it is an assertion being made by White House based on the preemption doctrine. It is not clear to me that Texas making it a state crime to violate federal immigration law as a pretext to use State Law enforcement and National Guard to erect fencing and make arrests is actually prohibited by the supremacy clause. And it is not clear to me that it even violates the preemption doctrine because in theory there would have to be some discrepancy between the law as passed by congress and the law as enforced by the state in order for it to do so and federal immigration laws are still on the books.
Not really. The actual case being litigated (see briefs) is much simpler, although this is confused because both sides appear to be arguing in bad faith. The Feds want to be able to cut the wire, Texas opposes them. The instant litigation isn't about what happens to the immigrants. If Texas authorities started doing what they say they want to do (i.e. summarily returning border-crossers who are mostly not Mexican to Mexico) then there would be a whole extra layer of litigation.
The Feds' position is that black-letter law gives the Border Patrol the right to enter private property within 25 miles of the border in the course of their official duties, and that cutting the wire is necessary to do so expeditiously. Texas's position is that they have a property right in their barbed wire. Given the facts (critically, that Abbott has made no secret of the fact that he wants to exclude the Border Patrol from Shelby Park) this is an easy win on the law for the Feds.
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