Earlier today, Texas Governor Greg Abbott ended a system of onerous inspections that he had previously imposed on trucks crossing his state from Mexico. The official rationale for the inspections was the alleged need to combat cross-border drug trafficking and illegal migration. But, as Reason’s Fiona Harrigan explains, the inspections have done a lot of harm for little or no gain:
Reinforced inspections, which are already strengthening efforts carried out by Customs and Border Patrol (CBP), have crippled traffic in the name of stopping the illegal transport of drugs and migrants. “We were not taken into consideration” mentioned Ernesto Gaytan, president of the Texas Trucking Association (TXTA), told Reuters that migrants rarely attempt to enter the United States in commercial trucks at ports of entry….
“Unfortunately, this new initiative duplicates existing enforcement efforts and is causing significant congestion, delaying the products Americans rely on from our largest trading partner, Mexico,” reads one. statement of the TXTA. National Chamber of Freight Transport of Mexico reported that its member companies were losing millions of dollars every day due to delays. The Texas International Produce Association implored Abbott to change its policy, with CEO Dante Galeazzi in writing that “American trucking companies are losing money because they sit for days without loads to haul”. Galeazzi reported hearing “that a trucking company is refusing to send trucks south of San Antonio for fear that there is no cargo available.” perishable goods take the risk to indulge during long waits in the Texas heat.
Far from being a localized problem, the delays imposed by Abbott’s new inspection measures have also angered federal border officials, who warn of broader supply chain challenges. CCP describe recent wait times “exceeding five hours and commercial traffic down 60%,” noting that its officials are already “thoroughly” inspecting and allowing vehicles into the U.S. “Strength of the U.S. Economy relies heavily on the efficient flow of cross-border traffic,” CBP said.
After an outcry from truckers and others, Abbott ended the inspections. He tried to claim victory by invoking the agreements reached with the governors of the Mexican border states. But, in fact, as the Texas Grandstand documented, the agreements do not include any significant provisions beyond what the Mexicans were already doing:
This strongly suggests that the inspections were more about grandstanding for the benefit of Abbott’s political base than solving a real problem.
Moreover, it is likely that they were also unconstitutional. The Constitution’s Dormant Commerce Clause restricts state regulations that impede interstate and foreign commerce. Most of the relevant legal precedents relate to state laws that interfere with interstate commerce. But Supreme Court precedent makes it clear that ssimilar constraints apply to state regulation of international tradewhich thus violates the “dormant foreign trade clause”.
The legal doctrine here is complicated, and I am by no means an expert on any of it. But I would tentatively say that Abbott’s inspection regime was a pretty obvious violation of the dormant foreign trade clause. The Supreme Court precedent is particularly clear that the dormant commerce clause prohibits state regulations that target or discriminate against international or interstate commerce. Abbott’s inspections focused exclusively on cross-border trade and were explicitly aimed at targeting it. No such onerous inspection has been imposed on purely domestic trucking.
I welcome the correction by Dormant Commerce Clause experts. But if I understood correctly, it looks like an easy case. The question may be moot, as the inspections have been completed. However, that could happen again if Abbott or another border state governor decides to institute a similar policy in the future. It is also possible that truckers and others harmed by Abbott’s policies may sue for damages. The Supreme Court ruled that violations of the Dormant Commerce Clause may sometimes give rise to a lawsuit for damages under 42 USC 1983.
Some conservative jurists, like Supreme Court Justices Clarence Thomas and the late Antonin Scalia, argued that the dormant trade clause doctrine lacks original support and should be abolished. If so, neither Abbott’s policy nor anything else could violate it. I won’t attempt to assess the merits of this long-running debate here, except to note that adopting Scalia Thomas’ position would require reversing long-standing Supreme Court precedent.