The Senate on Thursday approved legislation to grant back pay to senior military officers whose promotions were delayed for months by Sen. Tommy Tuberville’s hold on nominations.

The Alabama senator had blocked confirmation of general and flag officer promotions for 10 months in protest over the Pentagon’s policy of reimbursing troops who travel to seek abortions. He finally relented last week, allowing more than 400 military nominees to be confirmed.

In the wake of the blockade, senators in both parties pushed to compensate officers who during the impasse had lost out on increased pay that would have come with a higher rank.

The bill, passed by unanimous consent before the Senate left for the week, was introduced by Sens. Mike Rounds (R-S.D.) and Joe Manchin (D-W.Va.), both members of the Armed Services Committee. Tuberville himself was among the first co-sponsors of the bipartisan bill.

Senate Majority Leader Chuck Schumer said on the floor that the bill’s passage signals that troops and their families “don’t deserve to be penalized in any way” for Tuberville’s unprecedented blockade.

“Finally, we’re able to right the wrong of Sen. Tuberville’s illogical, hurtful and dangerous holds and the massive impacts the holds had on military families,” Schumer said.

The measure must still pass the House, but will likely have to wait for a vote there. Lawmakers from the lower chamber left earlier Thursday for the rest of the year, but could take up the measure in January when they return to session.

Tuberville is still blocking the quick confirmation of 11 nominees for four-star positions. Schumer could line up votes on those promotions when the Senate returns next week.

As I watched the presidents of Harvard University, Massachusetts Institute of Technology and the University of Pennsylvania struggle last week to respond to harsh congressional questioning about the prevalence of antisemitism on their campuses, I had a singular thought: Censorship helped put these presidents in their predicament, and censorship will not help them escape.

To understand what I mean, we have to understand what, exactly, was wrong — and right — with their responses in the now-viral exchange with Rep. Elise Stefanik, R-N.Y. The key moment occurred when Stefanik asked whether “calling for the genocide of Jews” would violate school policies. The answers the presidents gave were lawyerly versions of “it depends” or “context matters.”

There was an immediate explosion of outrage, and the president of Penn, Elizabeth Magill, resigned Saturday. But this is genocide we’re talking about! How can “context” matter in that context? If that’s not harassment and bullying, then what is?

But I had a different response.

Not legal insufficiency, but hypocrisy

I’m a former litigator who spent much of my legal career battling censorship on college campuses, and the thing that struck me about the presidents’ answers wasn’t their legal insufficiency but rather their stunning hypocrisy. And it’s that hypocrisy, not the presidents’ understanding of the law, that has created a campus crisis.

First, let’s deal with the law. Harvard, Penn and MIT are private universities. Unlike public schools, they’re not bound by the First Amendment, and they therefore possess enormous freedom to fashion their own custom speech policies. But while they are not bound by law to protect free speech, they are required, as educational institutions that receive federal funds, to protect students against discriminatory harassment, including — in some instances — student-on-student peer harassment.

Academic-freedom advocates have long called for the nation’s most prestigious private universities to protect free speech by using First Amendment principles to inform campus policies. After all, should students and faculty members at Harvard enjoy fewer free speech rights than, say, those at Bunker Hill Community College, a public school not far from Harvard’s campus?

If Harvard, MIT and Penn had chosen to model their policies after the First Amendment, many of the presidents’ controversial answers would be largely correct. When it comes to prohibiting speech, even the most vile forms of speech, context matters. A lot.

For example, surprising though it may be, the First Amendment does largely protect calls for violence. In case after case, the Supreme Court has held that in the absence of an actual, immediate threat — such as an incitement to violence — the government cannot punish a person who advocates violence. And no, there is not even a genocide exception to this rule.

But that changes for publicly funded universities when speech veers into targeted harassment that is “so severe, pervasive and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” First Amendment scholar Eugene Volokh has helpfully articulated the difference between prohibited harassment and protected speech as often the difference between “one-to-one speech” and “one-to-many speech.” Legal commentator David Lat explained further, writing, “If I repeatedly send antisemitic emails and texts to a single Jewish student, that is far more likely to constitute harassment than if I set up an antisemitic website available to the entire world.”

As a result, what we’ve seen on campus is a mixture of protected antisemitic (as well as anti-Islamic) speech and prohibited harassment. Chanting “Globalize the intifada” or “From the river to the sea, Palestine will be free” at a public protest is protected speech. Tearing down another person’s posters is not. (My rights to free speech do not include a right to block another person’s speech.) Trapping Jewish students in a library while protesters pound on library doors is not protected speech, either.

Context does indeed matter

So if the university presidents were largely (though clumsily) correct about the legal balance, why the outrage? To quote the presidents back to themselves, context matters. For decades now, we’ve watched as campus administrators from coast to coast have constructed a comprehensive web of policies and practices intended to suppress so-called hate speech and to support students who find themselves distressed by speech they find offensive.

The result has been a network of speech codes, bias response teams, safe spaces and glossaries of microaggressions that are all designed to protect students from alleged emotional harm. But not all students. When, as a student at Harvard Law School, I was booed and hissed and told to “go die” for articulating pro-life or other conservative views, exactly zero administrators cared about my feelings. Nor did it cross my mind to ask them for help. I was an adult. I could handle my classmates’ anger.

Yet, how sensitive are administrators to student feelings under other circumstances? I had to chuckle when I read my colleague Pamela Paul’s excellent column on the Columbia School of Social Work and she quoted a school glossary that uses the term “folx.” Why spell the word with an “x”? Because some apparently believe the letter “s” in “folks” renders the term insufficiently inclusive. I kid you not.

Moreover, each of the schools represented at the hearing has its own checkered past on free speech. Harvard is the worst-rated school for free expression in America, according to the Foundation for Individual Rights and Expression. (I served as the group’s president in 2004 and 2005.) So, even if the presidents’ lawyerly answers were correct, it’s more than fair to ask: Where was this commitment to free expression in the past?

With apologies to Homer Simpson …

That said, some of the responses to campus outrages have been just as distressing as the hypocrisy shown by the school presidents. With all due apology to Homer Simpson and his legendary theory of alcohol, it’s as if many campus critics view censorship as the “cause of, and solution to, all of life’s problems.”

Universities have censored conservatives? Then censor progressives too. Declare the extreme slogans of pro-Palestinian protesters to be harassment, and pursue them vigorously. Give them the same treatment you’ve given other groups who hold offensive views. But that’s the wrong answer. It’s doubling down on the problem.

At the same time, however, it would be wrong to carry on as if there isn’t a need for fundamental change. The rule cannot be that Jews must endure free speech at its most painful, while favored campus constituencies enjoy the warmth of college administrators and the protection of campus speech codes. The status quo is intolerable.

The best, clearest plan for reform I’ve seen comes from Harvard’s own Steven Pinker, a psychologist. He writes that campuses should enact “clear and coherent” free speech policies. They should adopt a posture of “institutional neutrality” on public controversy. (“Universities are forums, not protagonists.”) They should end “heckler’s vetoes, building takeovers, classroom invasions, intimidations, blockades, assaults.”

But reform can’t be confined to policies. It also has to apply to cultures. As Pinker notes, that means disempowering a diversity, equity and inclusion apparatus that is itself all too often an engine of censorship and extreme political bias. Most importantly, universities need to take affirmative steps to embrace greater viewpoint diversity. Ideological monocultures breed groupthink, intolerance and oppression.

Best answer to bad speech?

Universities must absorb the fundamental truth that the best answer to bad speech is better speech, not censorship. Recently, I watched and listened to a video of a Jewish student’s emotional confrontation with pro-Palestinian protesters at Columbia University. Her voice shakes and there’s no doubt that it was hard for her to speak. She seeks a “genuine and real conversation” but also tells her audience exactly what it means to her when she hears terms such as “Zionist dogs.”

Confronting hatred with courageous speech is far better than confronting hatred with censorship. It is obviously important to protect students from harassment. I’m glad to see that the Department of Education is opening numerous Title VI investigations (including an investigation of Harvard) in response to reports of harassment on campus. But do not protect students from speech. Let them grow up and engage with even the most vile of ideas. The answer to campus hypocrisy isn’t more censorship. It’s true liberty. Without that liberty, the hypocrisy will reign for decades more.

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For going on three years, Texas Governor Greg Abbott has relentlessly escalated a border battle against migrants and refugees under the banner of Operation Lone Star. Both a reactionary opportunist and a savvy lawyer, Texas’ top executive has used his enterprise to test the boundaries between state and federal authority and to try to free Texas from strictures imposed by the U.S. Supreme Court. Abbott has distorted the state’s criminal trespass statute to target unauthorized migrants; he’s declared an “invasion” of Texas by Mexican cartels; he’s sent asylum-seekers by the busload to other American states; he’s empowered the Texas National Guard and state troopers to apprehend immigrants and return them to the U.S.-Mexico border; he’s built a wall; and he’s deployed dangerous river buoys in the Rio Grande.

Now, with Senate Bill 4, the Texas Legislature has gifted Abbott the most extreme weapon in his anti-Federalist arsenal yet—one that could reshape immigration enforcement nationwide. 

SB 4, passed in November during a dysfunctional fourth special legislative session, grants unprecedented powers to local and state police, judges, and magistrates. For starters, the bill makes it a state misdemeanor crime for a non-U.S. citizen to improperly enter Texas from another country—say, by rafting across the Rio Grande from Mexico. To avoid prosecution, alleged crossers may agree to a judicial order to return to the country they came from; if prosecuted, they face up to six months in jail, after which they’ll be subject to an identical order anyway. Refusal to comply with these state deportation orders constitutes a separate felony offense.

The bill also makes it a crime to reenter or be “at any time found” in Texas after having previously been removed from the country under SB 4 or by the feds. The law’s language utterly ignores the fact that deportees can sometimes return legally to America. SB 4’s crimes can be enforced anywhere in the sprawling Lone Star State, where one in five residents is foreign-born, including months or years after a person arrives. Unlike other anti-immigrant laws in Texas and elsewhere, SB 4 does not prohibit racial profiling in enforcement. It also does not exempt people seeking asylum.

In response to the bill, Mexico’s Foreign Ministry announced its concern for the “human rights” of the more than 10 million Mexicans living in Texas. Posing a major logistical hurdle for SB 4’s removal scheme, the agency also said that “Mexico categorically rejects any measure that allows state or local authorities to detain and return Mexican or foreign nationals to Mexican territory.”

What the Texas Legislature has passed is unprecedented in that it is a complete override of the federal government’s authority in immigration.

The U.S. federal government already maintains its own laws against illegal entry and reentry—statutes of racist origin that it enforces with discretion—but a state doing so would be an earthquake for the legal status quo, as would Texas effectively implementing its own deportation system. 

“What the Texas Legislature has passed is unprecedented in that it is a complete override of the federal government’s authority in immigration,” said Adriana Piñon, legal director of the ACLU of Texas, which has already announced it will sue the state over the law. “SB 4 is brazenly unconstitutional and flouts … well-established precedent.”

The U.S. Supreme Court has affirmed the feds’ peremptory power over immigration since at least 1876, when it struck down a California law that had allowed state officials to deny entry to Chinese women deemed “lewd and debauched.” Under the California statute, the court memorably warned that “a silly, an obstinate, or a wicked [state official] may bring disgrace upon the whole country”—something the state had no right to do. Subsequent rulings, including one striking down a Pennsylvania law requiring non-citizens to register with the state, would reaffirm this federal power based on both foreign relations concerns and the Constitution’s specific prescription that Congress may “establish an uniform Rule of Naturalization.” 

Over time, the courts clarified that states could, barring any conflict with federal laws, choose to make life harder for undocumented immigrants in limited ways such as denying state benefits or driver’s licenses. But they had to stay away from decisions about entry, removal, or remaining in the country. “That’s the only thing that’s practicable when you think about it,” said National Immigration Law Center Legal Director Lisa Graybill, “when you think about, ‘What would the system look like if there were 50 different states with 50 different immigration laws?’” 

But around 2010, nativism was brewing in parts of the country. Prior to the Great Recession, America had seen high levels of unauthorized immigration for years; now the “Tea Party” revolt was in full swing. A Kansas attorney named Kris Kobach was helping cook up new policies around the country on the theory that state and local officials had “inherent” authority to enforce immigration law. In the border state of Arizona, where Maricopa County Sheriff Joe Arpaio was essentially running a mass racial profiling operation to harass immigrants, a now-infamous piece of legislation called Senate Bill 1070 emerged. 

What would the system look like if there were 50 different states with 50 different immigration laws?

In a prefatory section, SB 1070 declared its intent to drive out unauthorized immigrants by “attrition through enforcement.” The bill made it a state crime for undocumented immigrants to seek employment or fail to carry federal registration documents; it also required police, in some cases, to determine immigration status during routine stops and empowered officers to arrest certain immigrants they believed to be deportable. SB 1070 sparked both terror and outrage, and Mexico issued a travel warning for the Grand Canyon State. In a dramatic move, the U.S. Justice Department sued to halt the bill, setting up the Supreme Court’s most recent major edict on immigration jurisdiction in a case styled Arizona v. United States. 

In 1787, the Founding Father and abolitionist John Jay penned an argument in the third Federalist Paper about a special risk posed to national security by those states that bordered then-Spanish and British territories. “The bordering States, if any, will be those who, under the impulse of sudden irritation, and a quick sense of apparent interest or injury, will be most likely, by direct violence, to excite war with these nations,” Jay wrote, concluding that the “wisdom and prudence” of a strong national government would mitigate this danger.

Of course, much has changed since the 18th century. The United States is surrounded by neither British nor Spanish colonies, and as the global superpower, it faces little risk of war with any nearby nation. But Jay’s point—that international affairs need be left to the federal government and that border states, in particular, may tend to bluster shortsightedly into matters beyond their ken—remains cogent. It’s an insight that was ratified in the Constitution and later embraced by the courts, which have confined to the central government not just the prerogative to make treaties or declare war but the inextricably related power to control immigration. It’s an insight that almost seems conceived with Governor Abbott in mind.

In 2012, a 5-3 Supreme Court majority (Justice Elena Kagan, who likely would have made it 6-3, recused herself) struck down or narrowed the bulk of Arizona’s SB 1070. The legal reasoning varied somewhat with each section of the state law, but the overall thrust was clear. “The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens,” wrote Justice Anthony Kennedy in the court’s opinion, in which he cited John Jay’s Federalist paper as a source. “Arizona may have understandable frustrations with the problems caused by illegal immigration … but the State may not pursue policies that undermine federal law.”

Reactions to the Supreme Court’s ruling were initially mixed because the court didn’t annul SB 1070 in its entirety, but the decision ultimately proved a major win for the pro-immigrant side. “The Arizona case was an emphatic restatement of this core authority … the near-exclusive federal power over immigration,” said Peter Spiro, professor of international law at Temple University. 

Other states including Alabama and Georgia had passed copycat legislation following Arizona’s lead. These were largely shredded in the lower courts after the 2012 decision, nipping Kobach’s legal strategy in the bud, and one Arizona provision that narrowly survived the Supreme Court ruling was later circumscribed per a separate settlement agreement.

Operating under this legal status quo, Republican leaders like Texas’ governor busied themselves with more indirect measures like fear-mongering about Syrian refugees, banning “sanctuary cities,” and flooding the border with cops and soldiers to assist Border Patrol. But as even President Trump’s cruelty failed to stem a global refugee crisis and the state GOP’s moderate wing deteriorated, and as the Supreme Court lurched rightward and a vulnerable Democrat entered the White House, knives were sharpened. 

Last May, during a stop in Houston, Abbott criticized both the Arizona precedent and a landmark 1982 ruling that required states to fund public education for undocumented children. “One or both of those two decisions are going to have to go,” the governor said. “Either the Arizona decision will have to go, giving states full authority to enforce U.S. immigration law, or [Plyler v. Doe] will have to go,” meaning the feds would start footing the bill for educating kids without legal status.

“One or both of those two decisions are going to have to go,” Governor Greg Abbott has said of the Arizona precedent and a landmark 1982 ruling that required states to fund public education for undocumented children. Shutterstock

In March, Texas Attorney General Ken Paxton, who has fought virtually every attempt by President Biden to liberalize immigration policy, told a state Senate committee that he hoped for legislation that would challenge the Arizona holding. “I have been saying this for two years that we ought to do what we can to try to overturn that decision,” the state’s embattled top attorney said. “We’ve got a different court; we’ve got the best chance we’ve ever had to overturn that and give the states the ability to protect their citizens.” 

In this fall’s third and fourth special legislative sessions, Abbott specifically called for bills criminalizing illegal entry and authorizing state deportations.

State Representative David Spiller—a Republican from Jacksboro, some six hours by car from the border, who carried versions of SB 4 in the House in both sessions—told the Observer that drafting the bill was “a group effort” with help from both the governor and attorney general’s offices. Spiller claimed the bill was actually not a bid to overturn Arizona: “It’s not in conflict with federal law,” he said. “It stayed away from the areas that Arizona and SB 1070 … got into.”

Spiller is correct that his bill is different from Arizona’s, but experts say that SB 4, if anything, conflicts more directly with the top court’s holdings. “It goes into the core of immigration regulation, which well before the Arizona case, the Supreme Court indicated you can’t do,” said Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund. “If we didn’t have one immigration system, we wouldn’t be one country, and that’s what Texas has done because it’s seeking to basically run its own deportation court.”

Because of the surplus of legal precedent, Saenz is among those who think that even today’s much more conservative U.S. Supreme Court would vacate SB 4. “I think the only two who may be just crazy enough to go the other way are obviously [Justice] Clarence Thomas and [Justice Samuel] Alito,” he said, both judges having been on the court and dissented from the 2012 ruling.

There’s just a lot more of these kinds of frontal challenges to well-established norms, and those norms seem to be falling by the wayside in lots of other contexts.

Of three conservative dissents, the most extensive and radical in the Arizona case came from now-deceased Justice Antonin Scalia, who wrote that the majority holding “deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there,” grounding his argument in the historical claim that states during the Republic’s first century restricted immigration of “convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks.” 

Some observers see Scalia’s opinion as something of a dead letter, rather than a dissent likely to be revived. “I think it was viewed as extreme then, and it’s still extreme,” said Kevin Johnson, professor of law and Chicana/o Studies at UC-Davis, who agreed with Saenz that even today’s Supreme Court would reaffirm its long-standing immigration jurisprudence.

But, in the wake of nation-shaking decisions such as the end of Roe, not all experts are so sure. “There’s just a lot more of these kinds of frontal challenges to well-established norms, and those norms seem to be falling by the wayside in lots of other contexts,” said Spiro, the Temple professor, adding that the argumentative material for such a reversal could come from the unique impact of immigration on states like Texas.

“If there’s anything left to the norm against state action in immigration, [the court] will dispatch with this law. But it will test it—and I’m not sure the norm stands.”