Is Congressman Chip Roy advocating secession?

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300 New Jersey Avenue, N.W., Suite 900

Washington, D.C. 20001

Phone: 202-465-8728

February 20, 2024

Representative Chip Roy

United States House of Representatives

103 Cannon House Office Building

Washington, D.C. 20515

Re: Flouting the United States Supreme Court order in DHS v. Texas (January 24, 2024)

Dear Representative Roy:

We write to petition you to retract your exhortations to Texas to defy the order of the United States Supreme Court in Department of Homeland Security v. Texas (Jan. 24, 2024).

The decision blocked Texas from preventing United States immigration officials from performing their national duties on the border separating Mexico from Texas.  You took an oath to “support and defend” the Constitution of the United States. You graduated from the highly acclaimed University of Texas law school.

In Cooper v. Aaron, 358 U.S. 1 (1958), the United States Supreme Court unanimously declared that state officials are bound to honor and enforce its constitutional decisions.  The Court left no room for confusion in rejecting the argument of Arkansas that it was not bound by the school desegregation decision of Brown v. Board of Education, 347 U.S. 483 (1954):

Article VI of the Constitution makes the Constitution the "supreme Law of the Land…" [T]he federal judiciary is supreme in the exposition of the law of the Constitution…the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution…”

“No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . ." A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, "it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . ."

            You told Fox News, among other things, that Texas should ignore the Supreme Court’s order in DHS v. Texas:

"There is no exception to [States defending their citizens]. And if the Supreme Court wants to ignore that truth, which a slim majority did, Texas still had the duty, Texas leaders still have the duty, to defend their people."

"It's like, if someone's breaking into your house, and the court says, 'Oh, sorry. You can't defend yourself.' What do you tell the court? You tell the court to go to hell, you defend yourself and then figure it out later."

Your reliance on Dred Scott v. Sandford, 60 U.S. 393 (1857) to justify flouting the Supreme Court’s order to Texas is misplaced. There, the Court declared Congress lacked power to prohibit slavery in territories and that black people had no rights white people were required to respect. The Supreme Court’s decision was not dishonored. President Abraham Lincoln’s first inaugural acknowledged it was binding on the parties, but that did not foreclose seeking an overruling of the precedent or testing its soundness politically. Slavery was abolished not through vigilante justice but by following proper constitutional order in ratifying the 13th Amendment in 1865.

You arguably are vulnerable to prosecutions for perjury or seditious conspiracy for urging Texas to flout the Supreme Court’s order in DHS v. Texas according to the rationale of Cooper v. Aaron, supra. We submit that your oath of office requires a retraction of your exhortations to Texas to defy the Court. We urge you to consider acting accordingly. 

To err is human. To acknowledge error is divine.

Sincerely,

/s/Bruce Fein

Bruce Fein

/s/Lou Fisher

Lou Fishe