That suit was mercifully dismissed in August. But the state’s strategy is instructive. One of the groups Texas sued along with Travis County was the Mexican American Legal Defense and Education Fund—one of the oldest and most respected Latino civil-rights groups in the country. I am quite sure that MALDEF has never refused an ICE detainer or refused to allow its peace officers to conduct immigration raids. (MALDEF has no jail, and no police force.) Its offense, the complaint stated, was that it “publicly declared imminent legal action against Texas.” (Texas was shamed into dropping MALDEF as a defendant even before the federal judge tossed the whole case.) It was as if Texas had sued the NAACP for opposing segregation.
Of course, that’s exactly what Southern states like Virginia did during the civil-rights era. That was another time of crisis, and the response of the segregated authorities was to attack the opposition. The state of Texas’s demand for silence and obedience echoes that dark time.
Immigration generally, and the Trump administration’s crackdown on the undocumented population in particular, are bitterly dividing both Texas and the United States as a whole. Much of the conflict pits urban areas against suburbs and rural ones; the cities where the undocumented live don’t want to drive their people into the shadows. Their officials believe that public services—such as civil justice, police protection, labor laws, public health, and consumer protection—can’t be effectively provided unless everyone can access them without fear of arrest or deportation.
In the past six months, the national disquiet over immigration has become a war against a new enemy: 11.3 million people within America’s borders. The Constitution’s guarantees of due process, equal protection, and security from unreasonable seizure or cruel and unusual punishment are being stripped from 3 percent of the U.S. population.
That war escalated sharply on Tuesday, when Attorney General Jeff Sessions announced that the administration is unwinding the “deferred action” program. The 800,000 “dreamers” in DACA—brought to the U.S. as children, raised among Americans—are now the enemy too. These are children, parents, brothers, sisters, co-workers, friends, and neighbors of American citizens. Whether at work, in emergency rooms, in courtrooms, at schools and colleges, or in their homes, unless Congress acts to protect them, they will be liable to arrest without warning and, often with only minimal due process, expulsion from the country.
Polls suggest that most citizens oppose wholesale deportation, and instead support giving law-abiding unauthorized immigrants a means to legalize their status, and eventually become citizens. As the war escalates, the outcry from local communities has begun. It seems unlikely this Congress will restore DACA; if it does not, the outcry seems likely to become louder. The war is probably unwinnable; it certainly is if Americans who oppose it are silenced. Courts do not save civil liberty when government is determined to stamp it out; for each citizen whose rights are vindicated in court, a dozen will remain silent out of fear. That is the meaning of “chilling effect,” and a chill wind indeed is blowing in the U.S. today.
“It is proper,” James Madison wrote in another context, “to take alarm at the first experiment on our liberties.” If citizens, and courts, do not act, Americans should not be surprised to find Texas-style gags around their mouths.