From Roger Fitch and our friends down under at Justinian.

 

The Disunited States of America

ROGER FITCH ESQ • MONDAY, JANUARY 29, 2024

The cowboys of Texas ... Asserting control over immigration ... Operation Lone Star ... Confederate theory of secession is alive and kicking ... Usurping federal powers ... Trump judges to the rescue ... Wild defence claims in election conspiracy case ... Roger Fitch reports from Washington 

Texas has always asserted its enduring sovereignty, claiming to be the only state that was previously a republic (Vermont disagrees). The state bolted from the Union once: it was almost the first to secede in 1861, and in 1870 it was one of the last readmitted.

Why? It was among the last to ratify the 15th amendment guaranteeing the right of "males" to vote without racial discrimination. 

In fact, the original admission of Texas in 1846 was so contentious and unpopular that, alone among the states, it was done by joint congressional resolution. Texas reserved the right to subdivide into five states, which, happily, never occurred; 108 US senators, ten of them Texans, doesn't bear thinking about. 

When British author John Bainbridge's seminal book about Texas, The Super-Americans, appeared in 1961, the state was still ruled by the same conservative Democrats (today's Republicans) who defended the "White Primary" (disallowed in Smith v Allwright, 1944) and segregated state universities (struck down in Sweatt v Painter, 1950). 

The Bainbridge paperback bore the cover blurb, "an incipient fascist state". Perhaps incipient no more: the majority-minority Texas has been tightly controlled by white-minority Republicans for a generation. Since George Bush's 1994 election as governor, most state-wide officers (governor, lieutenant governor, attorney-general, members of the supreme court and court of criminal appeals) have been Republicans. 

Since the Republicans' unprecedented 2003 do-over of the previous (Democrat) legislature's 2000 census-based redistricting, the party's unshakeable gerrymanders have guaranteed perpetual Republican control of the legislature and state congressional delegation.

In 2019 (in Rucho v Common Cause), a Republican-dominated US supreme court stopped all federal judicial review of partisan gerrymanders at the moment when most gerrymanders favoured Republicans. 

With permanent government assured, Texas Republicans have taken increasingly bold stances against the federal government, and with Donald Trump's extreme Federalist Society judges now in place at all levels of the federal judiciary, the state is reasserting its independence, bringing test cases of Texas's purported sovereign supremacy in sympathetic federal courts. 

It's the 1830s and "Nullification" again, with Texas standing-in for South Carolina. Indeed, 24 of the 25 Republican governors have piled on with what is essentially the Confederate Theory of Secession.

Operation Lone Star appropriates immigration control, though states have no right or power to participate in immigration policy, a federal matter. No matter, Texas found a friend in Drew Tipton, the district judge alternating with fellow Texan Matthew Kacsmaryk as worst Trump-appointed judge.

Texas governor Greg Abbott has also attacked immigration law in Kacsmaryk's court, where ultra vires interventions in federal immigration policies have succeeded. 

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