“the Texas Supreme Court handed down an extraordinary order saving Robert Roberson from execution — but potentially not for very long.
Roberson was convicted in 2003 of murdering his daughter on the theory that she died of “shaken baby syndrome.” However, in an extraordinary turn of events, it now appears likely that Roberson is innocent. Not only that, but it is far from clear that his daughter was even a victim of murder in the first place.
One reason to doubt the conviction is that modern science looks at shaken baby syndrome with increasing skepticism. More importantly, however, the evidence in Roberson’s case suggests that his poor girl actually died from a combination of pneumonia and medications that should never have been prescribed to such a young patient, and that the injuries that a 2003 jury attributed to child abuse may have resulted from a surgery.
Another reason why the order in In re Texas House of Representatives is so extraordinary is that it involves what may be an unprecedented conflict between the state’s legislature and its governor. Texas Gov. Greg Abbott (R) has the power to issue a 30-day pause on Roberson’s execution (although not to grant him permanent clemency) but has thus far refused to do so”
…
“a bipartisan group of state lawmakers issued a subpoena seeking Roberson’s testimony before a committee of the state’s House of Representatives. This hearing isn’t scheduled until Monday, and Roberson obviously could not comply with this subpoena if he had been killed Thursday night.
So Roberson’s case raises what may be a unique separation of powers issue under the Texas Constitution: Can Texas’s executive branch of government carry out an otherwise lawful execution if doing so would prevent its legislative branch from hearing testimony from a witness it has already subpoenaed?”
…
“The striking thing about this case, however, is that virtually everyone who has touched it wants Roberson to live except for the few people in Texas’s government (the Court of Criminal Appeals, the pardon board, and Abbott) who actually have the power to save him.”
“Only about 30 percent of Texas prisons are fully air-conditioned. While state law mandates that prison temperatures be kept between 65 degrees and 85 degrees, at dozens of state prisons, daily high temperatures topped that. At one prison, Garza West Unit, temperatures stayed above 100 degrees for 11 days straight in the summer of 2023.”
“In Texas — a state that often sees some of the hottest temperatures in the country — extreme heat killed more than 330 people in 2023, setting a new record. More recently, millions of people in cities like Houston have had to deal with a massive heat wave while navigating power outages caused by Hurricane Beryl.
Despite the growing toll, there’s shockingly little regulation around protecting people from the effects of heat. It’s a stark contrast to how policies tend to treat the extreme cold. And while extreme cold continues to be deadlier than extreme heat, as heat waves become more dangerous, the gap between the two is likely to shrink.”
“It is absolutely true that the right to self-defense is vital. And to argue that Perry—who, prior to killing Foster at a 2020 Black Lives Matter protest, wrote that he wanted to “shoot the [protesters] in the front and push the pedal to the metal”—acted in self-defense is to make a total mockery of that right and those who’ve had to exercise it.”
…
“In July 2020, Perry ran a red light and drove into a crowd of protesters. That in and of itself, of course, is not enough to deduce that he was looking for a fight. His own statements prior to doing so, however, add a great deal of helpful context and show his frame of mind at the time. “I might have to kill a few people on my way to work they are rioting outside my apartment complex,” he wrote on social media on May 31, 2020. Also in May, he threatened to a friend that he “might go to Dallas to shoot looters.” And then in mid-June, he sent that message about going to a protest, “shoot[ing] the ones in the front,” and then careening his car through the hubbub.
This was part of a pattern. Austin police detective William Bursley testified, for instance, that Perry searched on Safari for “protesters in Seattle gets shot,” “riot shootouts,” and “protests in Dallas live.” It is not hard to connect the dots between his searches and messages.
So what about that stand-your-ground defense Abbott alleges the jury nullified? Core to Perry’s case and trial was whether he reasonably feared for his life that July evening. Foster indeed had a rifle on him—because open carry is legal in Texas. The Second Amendment does not solely exist for people with conservative views. The big question then: Was Foster pointing the gun at Perry when he approached his vehicle? For the answer, we can go to Perry himself, who told law enforcement that he was not. “I believe he was going to aim at me,” he said. “I didn’t want to give him a chance to aim at me.” But that is not a self-defense justification, as Perry cannot claim clairvoyance.
That the jury reached the conclusion they did is not a mystery, nor is it an outrage. What is outrageous, however, is that a governor who claims to care about law and order has made clear that his support for crime victims is at least in part conditional on having the “right” politics.”
“in Texas, you can commit murder without suffering the legal consequences of that crime, so long as your victim’s politics are loathed by the right and your case is championed by conservative media. Or at least, this is the message sent by Gov. Greg Abbott’s pardoning of Daniel Perry.
“In the weeks after George Floyd’s murder in 2020, the proliferation of Black Lives Matter protests had filled Perry with apparent bloodlust. Then an active-duty Army officer, Perry texted and messaged friends, among other things:
“I might go to Dallas to shoot looters.”
“I might have to kill a few people on my way to work they are rioting outside my apartment complex … No protesters go near me or my car.”
“I wonder if they will let [me] cut the ears off of people who’s decided to commit suicide by me.”
When a friend of Perry asked him if he could “catch me a negro daddy,” Perry replied, “That is what I am hoping.”
Weeks later, Perry was driving an Uber in Austin, Texas, when he came upon a Black Lives Matter march. According to prosecutors, Perry ran a red light and drove his vehicle into the crowd, almost hitting several protesters. Activists gathered angrily around Perry’s car. Garrett Foster, a 28-year-old Air Force veteran who was openly carrying an AK-47 rifle, approached Perry’s window.
Perry then shot Foster dead.
At trial, Perry’s defense team alleged that Foster had pointed his rifle at the defendant. But witnesses testified that Foster never brandished his weapon, only carried it, which is legal in Texas. And Perry corroborated that account in his initial statement to the police, saying, “I believe he was going to aim at me. I didn’t want to give him a chance to aim at me.” A jury convicted Perry of murder last year.
But..the governor of Texas used his pardoning power to release Perry from prison.
In a statement, Abbott said, “Texas has one of the strongest ‘stand your ground’ laws of self-defense that cannot be nullified by a jury or a progressive district attorney.” He noted that in the Lone Star State, a person is justified in using deadly force against another if they “reasonably believe the deadly force is immediately necessary” for averting one’s own violent death. The Texas governor argued that it was reasonable for Perry to believe his life was at stake since Foster had held his gun in the “low-ready firing position.”
Yet this claim is inconsistent with Perry’s own remarks to the police, which indicated that Foster did not aim a rifle at his killer, but merely carried it. Needless to say, seeing a person lawfully carrying a firearm cannot give one a legal right to kill them.
But pesky realities like this carry less weight than conservative media’s delusional grievances. Shortly after Perry’s conviction in April 2023, then-Fox News anchor Tucker Carlson aired a segment portraying Perry as a helpless victim of “a mob of rioters” and a “Soros-funded” district attorney. Carlson decried the jury’s verdict as a “legal atrocity” and lambasted Abbott for standing idly by while his state invalidated conservatives’ right to defend themselves. “So that is Greg Abbott’s position,” he said. “There is no right of self-defense in Texas.”
The next day, Abbott pledged to work “as swiftly as Texas law allows regarding the pardon of Sgt. Perry.””
“This problem is so big, there’s not enough money to buy your way out. Some policymakers try to do demand-side incentives to buy off mortgages or supplement rent. If you don’t increase supply, those demand-side incentives have unintended consequences that actually make the problem worse.”
…
“A major way that Texas has kept prices down is through building gobs of new housing. Lone Star State jurisdictions collectively permitted about twice the number of new homes that California did last year, despite the state having around 8 million fewer residents.
Data culled by the Financial Times shows that the difference in per capita building is even more pronounced when one compares cities like Austin and Houston to San Francisco, which is in turn reflected in prices. Median home prices in Houston are a quarter of what they are in San Francisco.
The state has some of the most affordable housing of all the booming sunbelt states (save North Carolina) and is more affordable on average than the U.S. as a whole.”
…
“Part of Texas’ housing success is its uninteresting geography that Glock alluded to—lots of flat, dry land around its major cities that’s ideal for building new exurban subdivisions.
“A couple of the metros might have some physical constraints, but not really,” says Jacob Wegman, an associate professor at the University of Texas Austin’s School of Architecture. It’s “nothing compared to the California coastal metros or the Northeastern metros with their harbors. That’s got to be part of the story.””
…
“Texas’ policies also put no real regulatory obstacles in front of new suburban housing either. The state’s counties, for instance, can’t adopt zoning laws. That means housing is allowed on all unincorporated land.
High-cost, low-growth California and New York both have environmental laws that require endless studies on new development, and which give third parties the right to sue over new housing approvals. The result is new subdivisions can take half a century to approve.
Texas, in contrast, has no such laws.
“There’s just no real mechanism for neighbors who don’t want greenfield development to happen to stop it in any meaningful way,” says Wegman. “That’s got to be a big, big part of the story.””
“For well more than a century, the federal government has enjoyed near exclusive authority over immigration policy, while states have largely been restricted to assisting in carrying out federal policies. The Supreme Court has reinforced this rule many times over many decisions, such as Truax v. Raich (1915), which said that “the authority to control immigration — to admit or exclude aliens — is vested solely in the Federal Government.”
Texas, however, now wants the Supreme Court to abandon this longstanding constitutional rule, and it thinks that the political tumblers have finally aligned in a way that would lead the Court to do just that.
Texas seeks to upend the longstanding balance of power between the federal government and the states through a law, known as SB 4, which allows Texas state courts to issue deportation orders that will be carried out by Texas state officials. The law is now before the Supreme Court in two “shadow docket” cases, known as United States v. Texas and Las Americas Immigrant Advocacy v. McCraw.”
…
“The reason why the federal government has historically had exclusive authority over nearly all questions of immigration policy is to prevent a single state’s mistreatment of a foreign national from damaging US relations with another nation. Indeed, Hines v. Davidowitz (1941) warned that “international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs” committed against foreign nationals.
Which isn’t to say that the United States must always treat foreign citizens with caution or deference — just that a decision that could endanger the entire nation’s relationship with a foreign state should be made by a government that represents the entire nation.”
…
“the current Supreme Court has only a weak attachment to following precedent, especially when a precedent is widely disliked by modern-day Republicans. So there is at least some risk that the Court’s GOP-appointed majority will allow SB 4 to go into effect.”
“The governors and Abbott claim that states have a “right of self-defense” under Article 4, Section 4 of the Constitution (which guarantees that the federal government will “protect each [state] against Invasion”) and Article 1, Section 10, Clause 3 (which allows states to “engage in War” if “actually invaded,” which Abbott says gives Texas the “constitutional authority to defend and protect itself”).
This argument misunderstands the long-established legal and practical definitions of an “invasion.” It also misconstrues the nature of unauthorized migration.
James Madison and other drafters of the Constitution, Abbott argued, “foresaw that States should not be left to the mercy of a lawless president who does nothing to stop external threats like cartels smuggling millions of illegal immigrants across the border.” But “those who cite Madison in support of equating immigration and invasion ignore the one time he directly addressed this very question,” writes the George Mason University law professor Ilya Somin at The Volokh Conspiracy, a group blog hosted by Reason. Madison did so in “the Report of 1800, which rebutted claims that the Alien Friends Act of 1798 (which gave the president broad power to expel non-citizens) was authorized by the Invasion Clause.”
“Invasion is an operation of war,” declared Madison. “To protect against invasion is an exercise of the power of war. A power therefore not incident to war, cannot be incident to a particular modification of war. And as the removal of alien friends has appeared to be no incident to a general state of war, it cannot be incident to a partial state, or a particular modification of war.”
“Every court that has reviewed the question” of what qualifies as an invasion has interpreted it as “an ‘armed hostility from another political entity,'” wrote the Cato Institute’s David J. Bier for Reason in 2021. In 1996, California made the same argument as Abbott, saying that the federal government had failed to protect it against an “invasion” of “illegal aliens.” But the U.S. Court of Appeals for the 9th Circuit rejected that: “Even if the issue were properly within the Court’s constitutional responsibility, there are no manageable standards to ascertain whether or when an influx of illegal immigrants should be said to constitute an invasion.” Besides, the 9th Circuit said, California ignored Madison’s conclusion in Federalist No. 43 that the Invasion Clause affords “protection in situations wherein a state is exposed to armed hostility from another political entity.”
This is where Abbott runs into another issue: Undocumented immigrants bear little resemblance to an invading foreign army. Despite the constant invocations of “military-age” men crossing the border (the fearmonger’s favorite way of saying “young men”), there has also been a historic influx of migrant families. Large groups of border crossers marching through the Sonoran Desert or trudging across the Rio Grande may make good footage for media outlets intent on fearmongering, but the overwhelming majority are coming here for economic or humanitarian reasons, not to commit crimes or sow chaos.”
…
“By and large, people are happy to go through the legal immigration process if the steps are clear and accessible—but right now, they tend not to be. It’s up to Congress to pass immigration reforms that recognize these realities. Abbott’s misrepresentation of the Constitution does nothing to help.”