Analysis Paralysis: Allegations that ACLU Quietly Squelching Anti-OLS Lawsuits

Good Morning Friends,

Highly recommend taking a look at Texas Monthly’s website sometime today. Reporter Aaron Nelsen has a short, but great piece based on the curious question: After about a year of Operation Lone Star, why hasn’t the Justice Department or activist organizations really been able to effectively grapple with OLS in the courts?

Razorwire and Shipping Container, Eagle Pass. Image Courtesy: Chris Stokes, via the Texas Tribune.

For all of the rhetoric about the State of Texas pre-empting the federal government’s immigration authority, things just don’t seem to be breaking in any fashion that activists would seem to like.

Why is that?

Well, after reading Nelsen’s piece, the short answer seems to be that activists are being discouraged and quietly pressured to drop their lawsuits by the ACLU and others.

It seems left-leaning legal scholars are absolutely terrified that in the current judicial climate, any cases that end up in front of the Supreme Court will wind up damaging the legal precedents they’re relying on to argue against OLS to begin with.

Here’s the link to Nelsen's reporting.

In April, Hutchison, who has spent the better part of four decades working on employment discrimination and civil rights cases, sued state officials in the U.S. District Court for the Western District of Texas. She brought claims on Fourth Amendment and equal-protection grounds, arguing that Operation Lone Star enforcement constituted an unreasonable “search and seizure” and targeted her clients because of their race. But, above all, Hutchison built her case on preemption. There was a widely held view among attorneys and other legal experts that Texas officials were in flagrant violation of a 2012 Supreme Court ruling that found that an Arizona “show me your papers” law interfered with federal immigration authority. In June of 2021, the American Civil Liberties Union argued in a letter to Kinney County officials that state and local officials had no grounds for enforcing federal immigration laws, citing the federal preemption doctrine. In the fall of 2021, more than two dozen members of Congress, including Joaquin Castro, a Democrat who represents much of San Antonio, sent a letter to U.S. attorney general Merrick Garland and Alejandro Mayorkas, head of the Department of Homeland Security, accusing Abbott of violating the Constitution’s Supremacy Clause, from which the doctrine of preemption is derived. 

And yet, months later, the preemption challenge has not come. Hutchison says that, from the outset, the ACLU privately urged her against bringing forward a case built on preemption, and the Department of Justice never rallied around her lawsuit. While representatives in neither organization granted requests for interviews about their rationales, some legal scholars believe the organizations feared that the federal judiciary had shifted so far to the right that it would use the Operation Lone Star suit to overturn the Arizona precedent. “Everybody and their brother, including the ACLU, was telling us to drop the preemption claim,” Hutchison said. “And considering the current state of the Fifth Circuit, and the Supreme Court, making a preemption argument might just be giving Texas a chance to overturn Arizona, or at least make it super narrow.” 

—Reporter Aaron Nelsen, in Texas Monthly

There’s more to it than just that block quote. We’re linking to the piece again, here, for your convenience.

Nelsen’s hardly some right-wing ideologue. But he’s the only reporter so far that’s been willing to publish the answer to the burning question: Just what the heck is going on in the courts? If his reporting is accurate, one might assume that it would signal Gregg Abbott and others to put the pedal to the metal, and accelerate their efforts in hope of getting something pushed in front of the Supreme Court after all.

Then again, the tale of Daedalus and Icarus springs to mind, with it’s warnings against the perils of pushing too hard, flying too high, and the traps laid for us all by hubris.

There’s not a lot of new news to bring you from the highways and byways of Kinney County and the surrounding areas. Everything’s more or less the same as it’s been with the new normal.

Residents can park themselves with a cold drink at the corner of Highway 90 and Ann Street, and watch a constant flow of smuggling traffic heading East toward Uvalde, and West toward Del Rio. Sometimes the hidden vehicles are picked out by law-enforcement pursuit. Sometimes there are other possible clues in the state of the suspension of a vehicle, or the number of passengers.

Equally as noticeable is the constant flow of motor coaches and buses keeping a relatively untold number of people in storage on the highways— the sheer numbers and masses of individuals entering the US screened away from cameras and the alarm of middle America.

It is a somewhat ghoulish translation of “Just-In-Time” service, taken from the nation’s logistical supply train and applied to immigration. Truckers and others know it well. “Just-in-time” loads, or “J-T’s” as they’re sometimes called, have removed the need for massive warehousing for many corporations— converting the nation’s highways and the many 18-wheelers on them into one aggregate computer-tracked warehouse that sees goods arrive at stores “just-in-time.”

So to it is with the migrant traffic entering the country. Individuals are kept from piling up at the border and creating a humanitarian crisis by warehousing them on the highways in transit on these buses, until they can be dispersed around the country.

It’s an observation we’ve shared in a few other places, including with certain reporters and analysts. It’s been on the mind, after absently counting buses yesterday with a friend. At least 5 passed back and forth on Highway 90 during a single lunch break. We weren’t in a big hurry. But we also weren’t counting that closely.

We’re also aware of some reporting recently published in The Intercept, a left-leaning online magazine, by Reporter Melissa del Bosque.

Longtime readers may recall our mentioning her in the newsletter before. She’s visited the area at least twice that we know of. A delight to speak to and someone whose reporting we largely enjoy reading, we have to note that there wasn’t much hope that her coverage of OLS would be positive— and while she does speak well of the community in Kinney County, in general, her coverage of the response to the crisis threatens to paint the place as a paranoid borderline racist burg.

The piece is headlined: “THE TEXAS BORDER COUNTY AT THE CENTER OF A DANGEROUS RIGHT-WING EXPERIMENT”.

After reading it, one of our main complaints about the headline, is that it reduces local efforts to try and deal with what’s happening here as a simple experiment. It also would seem to characterize individuals here as helpless little rubes being led down the primrose path by wily political operators from elsewhere.

Fair enough, one supposes. It’s a narrative that may provide comfort for them that need it, even if it’s inaccurate.

Another area of complaint that we’ve arrived at after some thought— is that the piece relies heavily on quotes that appear to be months old, and are perhaps no longer relevant.

Many left leaning readers around the internet on twitter and other places are making much of a series of quotes in the piece, from a Kinney County resident named Carolea Hassard:

CAROLEA HASSARD, a rancher in rural Kinney County, Texas, population 3,100, received a jury summons in April. “They called more than 175 of us for a six-member jury selection,” she said. “I felt like I was in a murder trial. But this was for a misdemeanor trespassing case.”

The trial was for an undocumented Honduran man who had crossed the border into Kinney County, 120 miles west of San Antonio. He was being prosecuted for trespassing on private ranchland by the county attorney, Brent Smith, a major proponent of Texas Gov. Greg Abbott’s Operation Lone Star, which seeks to bypass the federal immigration system by detaining asylum-seekers and migrants on low-level state trespassing charges.

In the end, Hassard wasn’t chosen for the jury. She lost half a day’s work plus gas since it was an hourlong trip to the county courthouse and back. “It was really a waste of time,” she said. “Calling 175 people for a misdemeanor jury is going overboard.”

Like other residents in the border county, Hassard said she’s grown tired of Operation Lone Star and fearmongering by local elected officials like Smith, who paint the region as being under invasion. Over the last year, the formerly quiet ranching community has become a backdrop for Fox News and far-right media to promote the idea that states can declare an invasion under the U.S. Constitution and use force against migrants seeking refuge as if they were a hostile foreign power.

—Reporter Melissa del Bosque, in The Intercept

From there the piece does a decent job of laying out del Bosque’s consistent arguments over the years against militarizing the border. These are arguments and beliefs that are widely held in the Rio Grande Valley and elsewhere, and have been widely hashed out over the years and largely dismissed by an inattentive and distracted population in the nation-at-large.

But soon enough, her reporting takes another swing through Kinney County, painting a picture of a squalid little racist backwater, seemingly dominated by Anglo political figures that are bound to seek reprisal against anyone who speaks out.

Not everyone in Kinney County is on board with the idea of declaring an invasion and spending millions on prosecuting and jailing migrants.

Several residents said they wondered whether the money devoted to Operation Lone Star might not be better invested in the state’s power grid, which failed in February 2021 due to extreme cold. Residents had to survive several days in freezing temperatures without heat or running water. Or it could be invested in preserving the state’s groundwater. In April, Las Moras Springs and Creek, which are critical for the county, dried up due to extreme drought.

Many of the roads in Brackettville are riddled with potholes or unpaved. Nearly 18 percent of residents live below the poverty line, according to the U.S. Census Bureau. Residents told me that there was a wide economic divide between wealthy ranching families like Smith’s who are Anglo — and run the county’s government — and Latino families who live in town.

“There’s no jobs here for people,” one resident said of the county’s unemployment rate, which is higher than the state average. The resident asked to remain anonymous, citing a fear of reprisal from Smith, Coe, and Shahan. “Some don’t even have cars to get out of town,” she said. “You can see the need. And yet we’re spending all this money on arresting people.”

—Reporter Melissa del Bosque, The Intercept

One supposes that its entirely possible that a County Judge and a Sheriff somewhere in a small town in Texas might have tried to enforce an orthodoxy of political thought at some point in history.

But to us here at the Dispatch, living in 2022, this train of thought honestly comes across as some kind of a political wet dream, humidly imagined in the shadows of someone’s boudoir and normally only shyly whispered of in salons far removed from the realities they attempt to describe.

You know— the sort of nonsense that creates fiction like “The Handmaid’s Tale,” which is alternately described online as a right-wing fantasy, or a left-wing fantasy, depending on who’s talking about it. For the record, Handmaid was written by a Canadian feminist. It’s totally a left-wing fantasy, attempting to imagine what filthy, nasty deeds Conservatives will stoop to. Ultimately, it says more about the imaginer and their mindset than it does anything else.

Getting back to The Intercept and the idea of political reprisals for wrongthink in Kinney County, what would such reprisals look like any way? A couple speeding tickets? The local equivalent of some mean tweets? If talk is cheap, anonymous talk is ultimately worthless, but that doesn’t stop this provocative indulgence.

It finishes up with a few more anonymous quotes, and a return to Ms. Hassard’s perspective.

Hassard said she moved to Kinney County because it’s quiet and she can see the stars at night. “I live up in the hills and it’s real pretty,” she said. She’s seen two migrants on her ranch in the last two years. “When I opened up my window, they turned and ran like the devil was on their heels,” she said.

It’s not the migrants who bother her but the armed militia members who’ve been drawn to the county by the endless invasion talk. Not long ago, Hassard met a couple on an ATV near her ranch who said they were patrolling with a group called Texas Border Rescue. “They say they rescue migrants,” Hassard said. “But they’re carrying guns. You can phrase it however you want, but they’re here to chase human beings. I call them a vigilante group.”

—Reporter Melissa del Bosque, in The Intercept

We don’t know Ms. Hassard. And we don’t know where she lives, and can’t be bothered to look it up at the tax office. She’s a private citizen and probably doesn’t deserve the invasion of privacy such activity might constitute. Her comments suggest she lives north of town, however. This makes it highly unlikely that she’s only ever had two illegal aliens on her property, as the areas north of town are highly trafficked by those seeking to avoid Border Patrol checkpoints. She may have only ever seen two near her domicile, but odds are if cameras were to go up on her property, one would no longer be able to cling to such illusions.

And while she is referred to as a rancher in del Bosque’s reporting, one finds it doubtful that she’s actually working the land to any degree. If she were, there’s no question she’d share the same concerns of other working ranchers, who are having to cope with lost livestock, cut fences, destroyed water lines, garbage and debris, and other migrant mischief.

A cursory google search does reveal that Ms. Hassard appears to be a modest donor to the Texas Tribune, though it’s entirely possible that the donor in this case is a completely different Carolea Hassard. Unlikely however, given that the same google search shows a history of letters to the editor to various publications around the state by Ms. Hassard, all attempting to make points consistent with her comments to Ms. del Bosque.

There’s nothing wrong with sending money to the Tribune, per se. The organization is doing mostly good work, picking up the slack as newsrooms all over the state go through a slow-motion contraction as whatever transformation Journalism is going through continues to happen in slow-motion in front of us all.

Even so, it takes a special sort of conviction to send any modest funding to an organization that is loud and proud of its multi-million-dollar-single-donor gifts from the likes of Bill and Melinda Gates, Facebook, and others.

That’ll do it for now folks. As always, this newsletter is an independent publication, that is kept separate from our work at the Sheriff’s Office. It is put out into the world without oversight, and should not be mistaken for any sort of official communication by the county. Indeed, any errors or other misdeeds are entirely our own.

Have a great week— we’ll probably be back again a time or two before the weekend arrives. It’s homecoming week for the local high school. Expect the usual events and parades if you’re passing through the area, and slow down on Ann St.