For more than a century, immigration and border enforcement have been considered exclusively under federal control, and when states attempted to play a larger role, they were shut down by the courts.
Texas is now taking steps to challenge that legal interpretation before the current conservative majority on the U.S. Supreme Court. And the outcome may depend on a lone 2012 dissent by the late conservative Justice Antonin Scalia.
Scalia insisted that it was a myth that the Constitution gave the federal government exclusive power over immigration. He noted that most federal immigration laws did not go into effect until the 1880s, and that before that, states placed their own limits on who could enter.
He referred to the United States as “an indivisible union of sovereign states” and said that lax federal enforcement of immigration laws deprives “sovereign” states like Texas and Arizona of the “power to exclude…people who have no right.” to be there.” … States have the right to protect their borders against foreigners.”
Furthermore, he argued that even when federal law supersedes state law, that should not preclude states from engaging in federal law enforcement.
No other justice signed Scalia's opinion; His vision of “sovereign” states was seen by many as extreme and outdated.
But that dissent is now fueling the dispute over immigration and border control between Texas and the Biden administration.
And if the current, more conservative Supreme Court adopts Scalia's opinion, it could redefine the balance of power between the federal government and the states, and clear the way for aggressive state enforcement of immigration laws.
Last week he offered a preview. In a vote of 5 to 4, the judges sided with President Biden's Department of Homeland Security and overturned an appeals court order prohibiting U.S. Border Patrol agents from cutting barbed wire that had been installed by the state of Texas along the Rio Grande and preventing federal agents from patrolling the area.
But the one-line order was limited and said nothing about Texas's authority to block immigrants from entering the state, including with barbed wire along the river.
Texas Gov. Greg Abbott, citing Scalia's 2012 dissent, vowed to boost the legal fight.
“The federal government has broken the compact between the United States and the United States,” the Republican governor said in a statement issued after last week's Supreme Court order. “The Executive Branch of the United States has a constitutional duty to enforce federal laws that protect the states, including the immigration laws currently in effect. “President Biden has refused to enforce those laws and has even violated them.”
A day later, 25 Republican governors issued a statement saying they “stand in solidarity” with Abbott and Texas in using “every tool and strategy, including barbed wire fencing, to secure the border.”
Next week, the U.S. Court of Appeals for the Fifth Circuit in New Orleans will hear arguments in the barbed wire dispute. If Texas wins there, the case will likely return to the Supreme Court.
But soon a much more important case will arrive there.
In December, Abbott signed SB 4 into law, a measure that authorizes Texas police and judges to arrest, detain and deport immigrants suspected of crossing the border illegally.
The move is seen as a direct challenge to the 2012 Supreme Court decision that struck down a similar law in the case Arizona v. USA. It was that decision that sparked Scalia's disagreement.
“This is a frontal attack on federal primacy in immigration law enforcement, and it will definitely go to the Supreme Court,” said Stephen Yale-Loehr, a Cornell law professor.
Thomas Saenz, president of the Mexican American Legal Defense and Education Fund, called the Texas measure “the most extreme invasion of exclusive federal authority that we have seen in at least 50 years,” saying it “goes beyond Proposition 187.” of California and that of Arizona.” “SB 1070 by seeking to establish the state’s own system of immigration courts and forced removal orders.”
He warned: “If that were the law, we could have 50 different immigration systems in this country.”
But he predicted that even a Supreme Court as conservative as the current one would not uphold the Texas law.
“This is essentially political theater for Abbott. It will catch your attention and inspire the base,” he said.
In early January, the Biden administration filed a lawsuit in Austin, the state capital, seeking to block the Texas law comes into force on March 5 as planned.
“SB 4 is clearly unconstitutional,” outgoing Assistant U.S. Attorney Gen. Vanita Gupta said at the time. “Under the Supremacy Clause of the Constitution and long-standing Supreme Court precedent, states cannot adopt immigration laws that interfere with the framework enacted by Congress.”
The lawsuit says it seeks to preserve the “exclusive authority of the United States government… to regulate the entry and expulsion of noncitizens,” and that the nation “must speak with a single voice on immigration matters.”
Immigrant rights advocates have also expressed alarm about the Texas measure, saying it could be used against large numbers of noncitizens who live far from the border.
“This law will destroy Texas communities,” said Adriana Piñon, legal director of the American Civil Liberties Union of Texas, which also sued to block the law. “It will strip people of their rights under federal law with devastating consequences: families may be separated, more people may live in fear of authorities, and immigrants may have a harder time fully integrating into our communities.”
The Constitution establishes American laws as “the supreme law of the land,” which states are obligated to uphold.
Scalia did not question that principle and agreed that states cannot adopt or enforce laws that directly conflict with immigration laws adopted by Congress.
“I accept as a fact that the Constitution excludes state regulation when (1) it has been prohibited by valid federal law, or (2) it conflicts with federal regulation – when, for example, it admits those to whom federal regulation exclude or exclude those whom federal regulation would admit,” he wrote.
But he disagreed with the court's majority, which held that states like Arizona cannot use their police to enforce immigration laws in ways that go beyond federal policy.
Writing for the court, then-Justice Anthony M. Kennedy said that “the national government has significant power to regulate immigration” and that “states cannot pursue policies that undermine federal law.”
The judges blocked three parts of the Arizona law, including provisions that made it a state crime for an “unauthorized alien” to apply for work or fail to carry registration documents.
But the court stopped short of blocking a fourth provision, considered highly controversial at the time, under which police can try to “determine the immigration status” of any person they stop, detain or arrest if there is reason to believe the person is “unlawfully present in the United States.”
For many, the ruling on the Arizona law represented a warning that conservative states cannot pursue immigration measures that go beyond the policies and priorities established by the administration in Washington.
That understanding is now being tested.
Chief Justice John G. Roberts Jr., whose votes are overwhelmingly conservative, joined Kennedy in the Arizona case and last week sided with the Biden administration in the Texas dispute over barbed wire .
Conservative Justice Amy Coney Barrett cast a key vote for the majority in the Texas case, along with liberal Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.
Justices Clarence Thomas and Samuel A. Alito Jr., both conservatives, dissented in the 2012 Arizona case (although they did not join Scalia's statement of dissent) and did the same last week in the Texas case, along with fellow conservative justices Neil M. Gorsuch and Brett M. Kavanaugh.
If a federal judge in Austin or the Fifth Circuit refuses to block SB 4, the judges will likely face another emergency appeal from the Biden administration later this month.
