Federal feud fuels Texas bills
LEGISLATURE ’17 Some echo maneuvers tried in Jim Crow era
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.