Earlier today, Texas Gov. Greg Abbott has ended the system of heavy inspections that he used to impose on trucks entering Texas from Mexico. Officially, the reason for inspections was to stop illegal immigration and cross-border drug smuggling. Reason’s Fiona Harrigan points out that the inspections did little to no good, or even any benefit.
In an effort to stop illegal migration of migrants and drugs, traffic has been halted by enhanced inspections. These enhancements are in addition to the efforts of Customs and Border Patrol. “We weren’t taken into consideration,” said Ernesto Gaytan, chair of the Texas Trucking Association (TXTA), telling Reuters that migrants rarely attempt to enter the U.S. on commercial trucks at ports of entry….
TXTA stated that the new initiative “unfortunately duplicates existing screening efforts, leads to substantial congestion, delaying products Americans rely upon from Mexico”, in a statement. Mexico’s National Chamber of Freight Transport stated that delays were causing its members to lose millions of dollars every day. Dante Galeazzi, CEO of the Texas International Produce Association wrote that Abbott should change his policy. He stated that U.S. trucking firms are losing money because they don’t have loads to haul and sit idle for long periods. Galeazzi said that a trucking firm refused to transport trucks south from San Antonio because they fear there won’t be enough cargo. Long waits in Texas heat can lead to spoilage of perishable goods.
Abbott’s latest inspection measures, which have caused delays in entry into the United States, are far from a temporary problem. Officials at federal borders worry about wider supply chain problems. CBP stated that the recent wait times were “exceedingly five hours” and that commercial traffic was dropping as high as 60%. They also pointed out the fact its officers already thoroughly inspect vehicles before they enter the U.S. and “comprehensively” clear them.
Abbott ended inspections following a popular protest from truckers and other drivers. Abbott tried to win by citing the agreements he had with Mexican governors. However, as it turns out, the Texas TribuneIt has been shown that the agreements are not significant beyond what Mexico was already doing.
Abbott said the deals with Chihuahua, Coahuila, Nuevo León and Tamaulipas were “historic,” calling them an example of how border states can work together on immigration. However, three out of the four Mexican governors indicated that they intend to continue the same security measures as before Abbott authorized state inspections.
The fourth, Nuevo León Gov. Samuel Alejandro García Sepúlveda — whose state shares only 9 miles of the 1,200-mile Texas-Mexico border — agreed to set up new checkpoints for commercial trucks.
This suggests strongly that the inspections were more about grandstanding to benefit Abbott’s political base than actually solving any actual problem.
They were likely unconstitutional, too. The Constitution’s Dormant Commerce Clause limits state regulations that hinder interstate and international commerce. The majority of relevant legal precedents concern state laws that hinder interstate commerce. Supreme Court precedent shows that the same restrictions apply to international trade regulation by states, which infringes on the “Dormant Foreign Commerce Clause.”
This is a complex area of law and I’m not an expert. However, I think Abbott’s inspection program was an obvious violation of The Dormant Foreign Commerce Clause. Supreme Court precedent is especially clear that the Dormant Commerce Clause forbids state regulations that target international or interstate commerce or discriminate against it. Abbott inspections were only focused on cross-border commerce and had been explicitly designed to do so. There were no similar heavy inspections for domestic trucking.
Dormant Commerce Clause specialists are always welcome to make corrections. It seems like a simple case if I’m right. As the inspections are over, this issue might be resolved. It could recur if Abbott, or another governor of a border-state state decides to implement a similar policy. Truckers, as well as others who were harmed due to Abbott’s policies, could also sue. According to the Supreme Court, Dormant Commerce Clause violations may sometimes lead to lawsuits for damages under 42 U.S.C. Section 1983.
Some conservative jurists such as Supreme Court Justices Clarence Thomas, and Antonin Scalia have suggested that the Dormant Commerce Clause doctrine should not be allowed to stand alone and should be abrogated. It is possible that neither Abbott’s nor any other policy could be considered to violate the law. The merits of the long-standing debate are not mine to evaluate. I do however note that Scalia Thomas’ position will require an inverse of long-standing Supreme Court precedents.