Texas Gov. Greg Abbott Threatens New Challenge To Roll Back More Laws, Exclude More People By Challenging Supreme Court Precedent in Plyler v. Doe
Washington, DC- This week’s bombshell about the leaked Supreme Court decision to overturn Roe underscores a reality that extends beyond abortion rights: Republicans are increasingly relying on the judiciary to advance an extreme, counter-majoritarian agenda.
As America’s Voice legal advisor David Leopold has pointed out, immigration is part of this agenda. Essentially, Republican Governors and Attorneys General are using sympathetic Trump judges and a judiciary reshaped by Trump to advance their anti-immigration politics and prevent the Executive and Legislative branches from controlling immigration policy. In his February 2022 Medium post, “The Anti-Immigrant Judicial Pipeline Keeps Gushing,” Leopold writes:
“The judicial system is broken but the right wing pipeline is stronger than ever. Strength and endurance tested by Republican attacks on immigration, it’s now used by Republicans as a reliable political weapon against a broad range of issues … Right now, we’ve got a Supreme Court where the conservative members flaunt their political allegiances, ignore precedent, and fulfill the wishes of their GOP base. That’s not justice. It’s partisan politics. And it has no place in American courtrooms.”
In a new story in Time, “Why Judges Are Basically in Charge of U.S. Immigration Policy Now,” Jasmine Aguilera makes a similar observation, noting:
“With Congress on the sidelines, federal judges are now on the frontlines of interpreting and dictating the scope of executive actions, federal guidelines and agency rules—thereby determining how U.S. immigration policy actually works.
‘This is a manifestation of our broken immigration system,’ Stephen Yale-Loehr, professor of immigration law at Cornell University, tells TIME. Congress’s failure to pass comprehensive immigration reform has resulted in an explosion of agency rules and executive actions—which, in turn, lead to more legal challenges, he says. ‘Today, almost every executive action on immigration is being challenged in the courts.'”
The state of Texas and the nativist duo of Governor Greg Abbott and Attorney General Ken Paxton are the most aggressive practitioners of this approach and appear even more emboldened after this week’s Roe bombshell.
On a right wing talk show this week, Gov. Abbott offered a chilling threat to “resurrect” the Supreme Court’s 1982 Plyler v. Doe decision that affirmed that undocumented children can attend public school. As the Austin American-Statesman reported:
“‘Texas already long ago sued the federal government about having to incur the costs of the education program, in a case called Plyler versus Doe,’ Abbott said, speaking during an appearance on the Joe Pags show, a conservative radio talk show. ‘And the Supreme Court ruled against us on the issue. … I think we will resurrect that case and challenge this issue again, because the expenses are extraordinary and the times are different than when Plyler versus Doe was issued many decades ago.'”
According to America’s Voice legal advisor David Leopold:
We are moving quickly down a very slippery slope. As I’ve said before, the anti-immigrant judicial pipeline has been constructed by a very radical minority in the GOP to literally bypass the will of the majority of the American people. Gov. Greg Abbott’s threat to resurrect Plyler v. Doe, the Supreme Court’s 40 year old decision guaranteeing undocumented children a public education, would have been laughable a week ago. No one is laughing now. Justice Alito’s draft screed striking down Roe v. Wade makes clear that the Court’s right wing majority has no compunction about delivering a political win to a right wing constituency, settled law be damned. When it comes to immigration, Abbott has helped build the Texas segment of the anti-immigrant judicial pipeline, running from the courtrooms of like-minded federal judges through the Fifth Circuit appeals court and straight into the Supreme Court of the United States. It should come as no surprise that Abbott can now confidently broaden his war on immigrants to a brazen attack on undocumented children. Abbott knows his judicial challenge to Plyler will land in the courtroom of one of his Republican political allies.