Governor Greg Abbott has held several bizarre public announcements this month, but the one he staged with the governor of the Mexican state of Nuevo León last Wednesday was surely the strangest. In a dark room beneath dim fluorescent lights, the two governors sat in front of an enormous seal from Texas’s Department of Public Safety. After quick speeches filled with platitudes about the importance of trade and border security, each of the two governors awkwardly flaunted a so-called “memorandum of understanding” that they had signed in English and Spanish. The agreement outlined that Nuevo León, which shares with Texas a nine-mile strip of border north of Laredo, would ramp up border security measures and Texas would stop “enhanced safety inspections” of incoming traffic that Abbott had ordered earlier in the month.
Abbott had organized the meeting amid a brutal week for him politically. When the governor ordered the vehicle inspections, he acknowledged that they could “dramatically” slow the hundreds of thousands of trucks that cross the border each day. As the inspections began, that’s exactly what happened: lines to cross the Rio Grande stretched for miles as state troopers inspected cars and trucks, and some drivers waited as long as 32 hours to enter the country. The delayed arrival of auto parts from Mexico slowed down factory production in Texas; fresh produce rotted in trucks. By last week, the business community—and Texas agriculture commissioner Sid Miller, a leading member of Abbott’s party—had begun to mutiny.
When a reporter asked Abbott at the press conference Wednesday whether the supposed security measures he had ordered were a publicity stunt that had backfired, the governor responded defiantly. He said he knew the choking of trade would strong-arm Mexican governors into searching for a deal and pressure them into enforcing immigration laws and security measures on their borders. In other words, everything was going according to plan. “The goal all along has been to ensure that people understood the consequences of an open border,” Abbott said. “We knew that as soon as we did what we did on the border that we would be contacted by officials in Mexico, because it is a very high price to pay. . . . Sometimes it just takes action like that to spur people sitting down and working things out.”
If Abbott is to be taken at his word, he was pursuing a pressure campaign against a foreign government, effectively blockading international trade—not only between Mexico and Texas but also between all of Latin America and all of the U.S. and Canada—all to force Mexican officials to the bargaining table. Such a move is not dissimilar to the strategy behind international sanctions, such as President Joe Biden’s attempts to limit Russia’s access to global markets after its invasion of Ukraine, save for one glaring difference. Abbott is the head of a state, not the head of state. Some Texans, recalling long-ago civics classes, wondered: What gives the governor the authority to, in essence, blockade trade and negotiate international agreements?
As traffic began to pile up on the border last week, Sanford Levinson, a constitutional expert at the University of Texas Law School, pondered that question. The Commerce Clause of the U.S. Constitution gives Congress the exclusive authority to regulate trade between states and foreign governments. By effectively obstructing trade at the border, Abbott had, in Levinson’s mind, unilaterally obstructed interstate trade in a way that was likely illegal. Why, Levinson emailed his colleagues, hadn’t the Department of Justice sought an injunction to block Abbott’s plan and take the governor to court?
Officials at the Department of Justice did not respond to Texas Monthly’s request for an interview, and its lawyers have not released any public statements on Abbott’s border policy. Levinson could think of two potential explanations for the DOJ’s reticence to bring suit.
One, the U.S. attorney general, Merrick Garland—a former judge whose extreme caution and slow pace of work is drawing fire from some Democrats in the White House and Congress—worried that Abbott would claim a lawsuit was politically motivated. “I suspect that Abbott would have been delighted to have been the defendant in a lawsuit by the federal government,” Levinson says, pointing to the governor’s eagerness to be seen butting heads with President Joe Biden. (As the Texas attorney general, Abbott relished suing the federal government, once proclaiming, “What I really do for fun is I go into the office, [and] I sue the Obama administration.”) One of Garland’s spoken priorities has been to fight the perception that the DOJ is a politicized agency. Suing a governor who eagerly portrays himself as one of Biden’s political enemies could quickly draw accusations of partisanship and damage the DOJ’s reputation.
The second hypothesis Levinson found unlikely: “Maybe experienced lawyers at the top said, ‘Well, Texas might win this case.’ ”
A lawsuit against Texas would turn on the question of Abbott’s motivation in obstructing trade from Mexico. The Constitution and legal precedent outline that individual states are not permitted to obstruct interstate or international trade or commerce unless they do so in the legitimate interest of the public. Levinson provided an example: if Texas wanted to prevent the importation of Mexican tomatoes across its border on the grounds that Mexican produce was competing in the marketplace with Texas tomatoes, that would be illegal. “That’s literally first-year constitutional law: states can’t do that,” he says. But what if Texas leaders wanted to stop the importation of Mexican tomatoes because they worried that the produce carried parasites? In disputes such as these, which are common between states, courts must determine whether trade obstructions are carried out in the legitimate interest of the public or in pursuit of political objectives.
In calling for the increased inspections, Abbott said he was responding to the rollback of Title 42, a federal statute used by both the Trump and Biden administrations to expel more than a million migrants and asylum seekers without the due process of deportation trials, on the grounds that such restrictions were necessary to combat the COVID pandemic. While the governor implied that revoking Title 42 would lead to an increase in human smuggling and that his inspections thus might be in the public interest, there is no evidence that that’s the case—indeed, there’s a strong argument that revoking Title 42 actually discourages human smuggling.
If the DOJ had sued Texas, Abbott would likely have argued that he choked off critical interstate trade in the name of public safety. The DOJ would have likely tried to argue that the governor was pursuing a political end. The agency’s lawyers might have been provided a gift via Texas’s top lawyer. Last week, in an appearance on Fox News, Texas attorney general Ken Paxton offered insight into Abbott’s motivations. “The governor has figured out we can stop trade along the border, slow it down, and it will create pressure on Mexico and some of their governors to work out a deal to help us with border security,” he said.
Abbott’s motivations, and the prospect of a DOJ suit, are now academic: the governor fully abandoned his inspection scheme on April 14, when he signed an agreement with the fourth Mexican governor whose state shares a border with Texas. Commerce across the border has largely returned to normal. On Tuesday, I drove around Laredo; aside from truck lines at the normal Customs and Border Protection inspection checkpoint, I didn’t see any traffic, though I counted about a dozen DPS vehicles waiting along the shoulders of the highway in the first hundred miles north of the border.
Of course, Abbott only backtracked on his “enhanced safety inspection” plan after drafting agreements with four Mexican officials. Might this also have violated the law? Article II, Section II of the U.S. Constitution outlines that the president has the sole authority to negotiate treaties with foreign parties, with the advice and consent of the Senate. Levinson says Abbott is probably not in any trouble, however, because the memorandums of understanding he signed with the Mexican governors are not actually treaties. In fact, it’s hard to tell if they’re really anything besides pieces of paper that aren’t legally or politically enforceable.
Consider the first memorandum Abbott signed with Nuevo León’s governor, which runs barely longer than a page, even with its large seal of Texas and signatures the size of John Hancock’s. Even the simplest of international treaties often run hundreds of pages, as governments outline myriad contingencies and explain how parties will be held accountable to commitments made on the international stage. Coming to these sorts of agreements often takes months, even years. “Even a contract to sell your house requires several days of drafting and back-and-forth between you and the buyer,” says Levinson. Looking at Abbott’s short agreement—drafted hastily and signed on sheets of printer paper—Levinson finds it hard to see anything other than a photo op, a way for Abbott to gracefully abandon the politically disastrous inspections. That likely protects the governor from suit: no one will confuse a memorandum of understanding for an actual treaty illegally negotiated.