Fed­eral feud fu­els Texas bills

LEG­IS­LA­TURE ’17 Some echo ma­neu­vers tried in Jim Crow era

The Dallas Morning News - - FRONT PAGE - By DAVID McSWANE Austin Bureau dm­c­swane@dal­las­news.com

AUSTIN — About a dozen bills filed this month in ad­vance of the Texas Leg­is­la­ture’s 85th ses­sion in­di­cate that the Lone Star State’s fed­eral feud and legacy of de­fi­ance en­dures.

One bill, which could com­pli­cate ev­ery­thing from gun reg­u­la­tion to the is­suance of gay mar­riage li­censes, takes a play right out of the 1950s, when South­ern white-su­prem­a­cist law­mak­ers ar­gued the de­seg­re­ga­tion rul­ing in Brown vs. Board of Ed­u­ca­tion was null and void.

A hand­ful of bills aims to pro­hibit state of­fi­cials and lo­cal gov­ern­ments from work­ing with fed­eral au­thor­i­ties to en­force gun reg­u­la­tion, in­clud­ing am­mu­ni­tion re­stric­tions and bans on cer­tain firearms. If any political sub­di­vi­sion does, one bill says, they’ll lose state fund­ing, a hefty stick for may­ors and ed­u­ca­tors de­pen­dent on this cash.

An­other set of bills aims to es­tab­lish a leg­isla­tive com­mit­tee to re­view and iden­tify fed­eral court rul­ings, ex­ec­u­tive or­ders or reg­u­la­tions that state law­mak­ers be­lieve vi­o­late the 10th Amend­ment, which be­stows to the states pow­ers not ex­pressly granted to the fed­eral gov­ern­ment.

These mea­sures, cou­pled with Gov. Greg Ab­bott’s pre­vi­ous call for a con­ven­tion of states to amend the U.S. Con­sti­tu­tion and a steady drum­beat of anti-fed­eral law­suits filed by At­tor­ney Gen­eral Ken Pax­ton, in­di­cate state Repub­li­can lead­ers’ deep­en­ing de­fi­ance of fed­eral rule.

But ex­perts say the bills also sig­nal a resur­gence of sen­ti­ments not seen in the main­stream since the Jim Crow era and the Con­fed­er­acy be­fore that.

“We’re see­ing a kind of zom­bie con­sti­tu­tion­al­ism where no­tions that were thought to be dead are re­viv­ing in front of our eyes,” said Sandy Levin­son, a con­sti­tu­tional law pro­fes­sor at the Univer­sity of Texas and Har­vard Univer­sity law schools.

Levin­son is re­fer­ring to the doctrine of in­ter­po­si­tion and the­ory of nul­li­fi­ca­tion, whose once-dor­mant tenets have, in re­cent years, sur­faced in leg­is­la­tion in Idaho, Mis­souri, Kansas and Texas.

In­ter­po­si­tion ar­gues that states may pre­vent the en­force­ment of fed­eral laws the state deems un­con­sti­tu­tional, “in­ter­pos­ing” be­tween the fed­eral gov­ern­ment and the state’s res­i­dents. Nul­li­fi­ca­tion ar­gues that states can deem fed­eral laws null and void — an ar­gu­ment long ago shot down by the U.S. Supreme Court.

“This kind of nul­li­fi­ca­tion­ist and in­ter­po­si­tion­ist talk is very, very sig­nif­i­cant,” Levin­son said. “The Union is in a very, very per­ilous con­di­tion right now. There­fore, it’s not sur­pris­ing that we’re see­ing the re­viv­ing of the­o­ries that we thought were long dead and buried af­ter Ap­po­mat­tox.”

While states’ rights ar­gu­ments are noth­ing new in South­ern states, Levin­son said it is rare to see these con­cepts di­rectly in­voked in leg­is­la­tion. But Repub­li­can Sen. Bob Hall specif­i­cally ref­er­ences in­ter­po­si­tion in a bill that could com­pli­cate the is­suance of mar­riage li­censes to gay Tex­ans.

Threat to gay mar­riage?

A duo of bills filed by Hall, whose district in­cludes Mesquite and towns east of Dal­las, es­sen­tially would bar gov­ern­ment of­fi­cials, from the gover­nor’s of­fice down to the lo­cal school board, from par­tic­i­pat­ing in the en­force­ment of any law that dis­agrees with the Texas Bill of Rights.

The Texas Bill of Rights, among other pro­vi­sions, de­fines mar­riage as a union be­tween a man and a woman and pre­cludes an athe­ist from hold­ing pub­lic of­fice.

Both Levin­son and Dale Car­pen­ter, a con­sti­tu­tional law pro­fes­sor at South­ern Methodist Univer­sity, say Hall’s bill raises im­me­di­ate con­cerns about its con­sti­tu­tion­al­ity and prob­a­bly wouldn’t sus­tain a le­gal chal­lenge be­cause fed­eral law trumps state law.

But that doesn’t mean it couldn’t be passed into state law and ei­ther con­fuse — or in­spire — a county clerk into break­ing fed­eral law by re­fus­ing to is­sue mar­riage li­censes to gay cou­ples.

“This bill would pur­port to al­low state of­fi­cials to defy fed­eral court or­ders — in fact re­quire them to. And that is very prob­lem­atic,” Car­pen­ter said. “It could po­ten­tially pro­duce some ugly con­fronta­tions and, frankly, it could put some lower-level state of­fi­cial in a very dif­fi­cult sit­u­a­tion of vi­o­lat­ing state law on one hand and vi­o­lat­ing a fed­eral or­der in the other.”

Though he ac­knowl­edged he doesn’t be­lieve the Supreme Court has au­thor­ity to re­quire states to is­sue mar­riage li­censes to gay cou­ples, Hall told The Dal­las Morn­ing News his in­ten­tion in fil­ing the bill was “ab­so­lutely not” to defy the the rul­ing in Oberge­fell vs. Hodges, the 2015 case that es­tab­lished mar­riage equal­ity as a con­sti­tu­tional right.

“It’s re­ally a fight to pre­serve the states’ rights,” he said. “That is­sue has been clouded over the years. This is to move us back. These are state de­ci­sions.”

Hall said his bill, which could in­tro­duce broad con­flicts across mul­ti­ple ar­eas of law, was ini­tially aimed at pre­vent­ing fed­eral gun laws from be­ing en­forced at Texas tax­payer ex­pense. But he ad­mits the breadth of his bill could have im­pli­ca­tions for gay mar­riage in Texas and said, “If it does, it does.”

Hall’s bill is nearly iden­ti­cal to a House bill filed last year by out­go­ing Repub­li­can Rep. David Simp­son of Longview. Hall said he was un­aware of the his­tor­i­cal sig­nif­i­cance of the con­sti­tu­tional ar­gu­ment his bill in­vokes.

But Car­pen­ter said: “That is very care­fully con­sid­ered and cho­sen lan­guage. It can’t be a co­in­ci­dence that that word was used. It has res­o­nance go­ing back to de­seg­re­ga­tion. It is trou­bling that a state leg­is­la­tor would not un­der­stand some very ba­sic, bedrock con­sti­tu­tional prin­ci­ples.”

In­ter­po­si­tion in Texas

In­ter­po­si­tion and nul­li­fi­ca­tion have prove­nance in the writ­ings of both Thomas Jef­fer­son and James Madi­son, but the con­cepts reached peak ex­po­sure in 1956, two years af­ter the ini­tial Brown vs. Board of Ed­u­ca­tion de­ci­sion, when Vir­ginia passed the In­ter­po­si­tion Act in de­fi­ance of school de­seg­re­ga­tion.

That ac­tion pre­cip­i­tated sim­i­lar stands in other south­ern states, in­clud­ing Texas, ac­cord­ing to the 1996 book De­seg­re­gat­ing Texas Schools: Eisen­hower, Shivers and the Cri­sis at Mans­field High, pub­lished by the Univer­sity of Texas Press.

Au­thor Robyn Duff Ladino writes that af­ter the land­mark de­seg­re­ga­tion case, Mans­field ISD in Tar­rant County re­fused to com­ply and con­tin­ued send­ing black el­e­men­tary stu­dents to an in­fe­rior school, while black teenagers rode a pub­lic bus to a school in Fort Worth. Three black stu­dents sued with the help of the NAACP, and the school district be­came the first in the coun­try to be or­dered by a fed­eral court to de­seg­re­gate.

Still, 300 white peo­ple, in­clud­ing the town’s mayor and po­lice chief, sur­rounded Mans­field High School to pre­vent the three stu­dents from at­tend­ing. Dur­ing that demon­stra­tion, in which pro­test­ers hanged three black dum­mies in ef­figy, Gov. Al­lan Shivers de­ployed the Texas Rangers to up­hold seg­re­ga­tion and au­tho­rized the school district to bus black stu­dents to Fort Worth.

With the help of Shivers and in­spired by the doctrine of in­ter­po­si­tion, the school district de­fied a fed­eral court or­der un­til 1965, when fac­ing a loss of funds, it qui­etly de­seg­re­gated, ac­cord­ing to the Texas State His­tor­i­cal As­so­ci­a­tion. Pres­i­dent Dwight Eisen­hower didn’t in­ter­vene in the Mans­field cri­sis.

But in 1957, he was forced to do so in a sim­i­lar and more pub­li­cized in­ci­dent in Lit­tle Rock where the Lit­tle Rock Nine be­came the cen­ter of a stand­off be­tween Eisen­hower and Arkansas Gov. Or­val Faubus, who had de­ployed the Arkansas National Guard to en­force seg­re­ga­tion.

Around this time, an­other strat­egy sur­faced to de­lay de­seg­re­ga­tion with­out vi­o­lat­ing the fed­eral court or­der: Sev­eral states passed leg­is­la­tion for­bid­ding state of­fi­cials from en­forc­ing it.

Car­pen­ter and Levin­son say that in con­cept, that’s ex­actly what Repub­li­can House mem­bers Matt Krause of Tyler and Mark Keough of The Wood­lands have pro­posed to defy any pos­si­ble future fed­eral gun reg­u­la­tion.

And it will prob­a­bly work.

Guns and im­mi­gra­tion

Bills filed by Keough and Krause would pro­hibit coun­ties, cities and lo­cal boards — political sub­di­vi­sions in leg­isla­tive par­lance — from work­ing with fed­eral gun reg­u­la­tors. Hall filed a sim­i­lar bill in the Sen­ate.

“Whether that’s good pol­icy or not, it’s prob­a­bly con­sti­tu­tional,” Car­pen­ter said.

Es­sen­tially, the Supreme Court has de­ter­mined it’s up to the fed­eral gov­ern­ment to en­force fed­eral laws, so the state can throw up its hands.

Levin­son says Texas’ stron­garm­ing of lo­cal gov­ern­ments to not en­force fed­eral law may be a fer­tile test­ing ground for how lib­eral states such as Cal­i­for­nia and Colorado could find them­selves tak­ing cues from a 1950s play­book. Both have le­gal­ized recre­ational use of mar­i­juana, for ex­am­ple, which con­flicts with fed­eral law.

“What we’re see­ing is a re­volt, par­tic­u­larly by the Repub­li­can Party, but not only the Repub­li­can Party,” he said. “We tend to iden­tify nul­li­fi­ca­tion and in­ter­po­si­tion with the racist right, and there are cer­tainly rea­sons to do so, but you find both sides in our history mak­ing use of those ar­gu­ments.”

A gun rally drew a crowd to the Alamo in 2013. Bills filed in the Leg­is­la­ture would pro­hibit coun­ties, cities and lo­cal boards from work­ing with fed­eral gun reg­u­la­tors.

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