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Don’t Tell Gregg Abbott, But He Put Out a Report Laying Waste to ‘State Sovereignty’ Cause

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don't tread on me
Gage Skidmore/

In November, even as Texas Attorney General Greg Abbott was threatening to string up international election observers if they got too close to the polls in Texas, Abbott’s staff was preparing a report that throws a bucket of water (fluoridated, I’m sure) on the whole 10th Amendment/Agenda 21/state sovereignty business that now consumes Texas Republicans.

The report, released with all the fanfare of the Beef O’Brady’s Bowl game, was ordered by the Texas Legislature. Sponsored by state Rep. Lois Kolkhorst (R-Brenham), House Bill 1129 required the AG’s office to—as summarized in the report—“study the extent to which multinational organizations and international treaties interfere with state law or undermine the sovereignty of the State of Texas.” It even included a helpful list of international bodies for the AG to examine. The bill was one of the many paperwork exercises drawn up by the House Select Committee on State Sovereignty during the last session.

“If you are like me,” Kolkhorst wrote on her site in October, “I [sic] can’t wait to see what the study reveals about the decay and damage international laws and bodies are attempting in order to unravel our sovereignty.”

The wait is over. And here is what the AG’s office determined: The “decay and damage” is about as significant as a termite gnawing on the Olympus Mons; the “extent” of international laws interfering with state law about as far as you can toss the Gonzales cannon.

The executive summary provides a readable, bullet-pointed summary of what is long-settled law.

• International legal norms or decisions by multinational organizations do not, on their own accord, preempt state law or intrude on the sovereignty of the states.

• Provisions of international law supersede state law only if either: (1) they are embodied in self-executing provisions of a treaty ratified by the Senate; or (2) the U.S. Congress and the President codify the provisions into federal law through the legislative process.

• Multinational organizations can displace state law only if a federal statute or self-executing provision of a ratified treaty authorizes them do so.

• Treaties found to violate the Constitution cannot be enforced as a matter of domestic law.

To reach these conclusions, Abbott’s team largely relied on the U.S. Constitution, which tea partiers like U.S. Sen. Ted Cruz claim to have more or less committed to memory. (See: “TCCNCCPCC Pawn momma run”) The Supremacy Clause, all 63 words, provides the basic answer to Kolkhorst’s questions.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Under this constitutional framework, three—and only three—categories of laws are “supreme” in comparison to the laws of the State of Texas: (1) the U.S. Constitution itself; (2) “Laws of the United States”; and (3) treaties executed by the President and ratified by the Senate.

Importantly, international law is not included in the text of the Supremacy Clause and is therefore not “supreme” in comparison to state law.  Thus, international law, by itself, lacks any authority or preemptive force over state law. However, because the Constitution states that federal law is supreme, if Congress and the President enact a statute that independently adopts international law, or the Senate ratifies a self-executing treaty provision, then that action incorporates a provision of international law as the “supreme Law of the Land,” which renders it binding on the states like any other federal law.

Further, an international treaty cannot bind the United States if it violates the Constitution, which is truly the “supreme Law of the Land.”

The study also ran through the dread multinational organizations listed in HB 1129 and reached some stunning conclusions.

  • On the Security and Prosperity Partnership of North America: “Since President Barack Obama took office in 2009, the SPP has apparently become dormant—indeed, the U.S. website for the SPP is no longer even active.”
  •  On the World Health Organization: “The WHO has no authority to supersede state law.  Indeed, it does not appear that the WHO puprports [sic] to be a law-making body.”
  • And, my favorite, North America’s SuperCorridor Coalition, Inc: “NASCO is a private non-profit organization, not a governmental entity. Thus, it has no direct legal authority of its own and has no ability to restrict the authority of the Texas Legislature.”

Did we really need a taxpayer-funded study to tell us that an obscure non-profit isn’t using I-35 as a dagger pointed at the heart of Texas?

Still, I doubt Greg Abbott, Lois Kolkhorst or Rick Perry will be taking down their “Don’t Tread on Me!” flag anytime soon. That stuff sells.

Forrest Wilder, a native of Wimberley, Texas, is associate editor of the Observer. Forrest specializes in environmental reporting and runs the “Forrest for the Trees” blog. Forrest has appeared on Democracy Now!, The Rachel Maddow Show and numerous NPR stations. His work has been mentioned by The New York Times, the Washington Post, the New Yorker, Time magazine and many other state and national publications. Other than filing voluminous open records requests, Forrest enjoys fishing, kayaking, gardening and beer-league softball. He holds a bachelor's degree in anthropology from the University of Texas at Austin.

  • WallopinWill Martin

    Examples of self-executing treaties include Friendship, Commerce, and Navigation Treaties, as well as the more recent bilateral investment treaties. Reference:

    I wonder if Texas sovereignty is threatened by international standards for trade? For example, what about an international letter of credit which enables a Texas businessman to conduct business abroad? Should we do away with that?

    What is more absurd than idle, paranoid ignorance whipped up by self-serving demagogues?

    If more Texans would try their hand at modern entrepreneurship, there might be more appreciation for the international standards necessary to make trade flow smoothly. Even the biggest loud mouth ignoramus should be able to find a relative who can make some sort of handicraft to sell internationally on the internet. If these people tried to do something constructive for a change, then they might not be so consumed with fear of the unknown world beyond our borders.