Texas' ongoing dispute with the federal government over immigration enforcement cuts to the very heart of our constitutional system. Governor Greg Abbott, and those who encourage him, are challenging not only federal authority but also the power of the Supreme Court and, ultimately, the supremacy of the Constitution itself.
The dispute arose because Texas installed barbed wire fencing along parts of the Rio Grande, among other unilateral measures on the US-Mexico border. Texas officials say they did it to deter an influx of border crossers, many of whom are seeking asylum. The question is whether the federal government can remove the fence given its power over the border and immigration.
A panel of the conservative U.S. Court of Appeals for the Fifth Circuit prohibited the federal government from removing the barbed wire except in cases of medical emergencies. Last week, however, in order 5-4 without opinionThe Supreme Court granted the US attorney general's request that border agents be allowed to remove the barbed wire.
That should have put the matter to rest for the moment. But the Texas National Guard and state troopers continued to put up razor wire and block federal agents from accessing part of the border. On Wednesday, the
The Republican governor publicly challenged the Supreme Court ruling and vowed to “Hold the line.” Abbott said Texas is under “invasion” and that the state's right to defend itself “is the supreme law of the land and supersedes any federal statute to the contrary.”
He Republican Governors Association. issued a statement Thursday supporting Abbott “in utilizing all tools and strategies, including barbed wire fencing, to secure the border.” Former President Trump also defended Abbott and called on other states to send your national guards to support Texas.
This is terrifying and simply wrong from the point of view of the law. To begin with, Article VI of the Constitution grants supremacy to the federal government when acting within its authority, considering any state policy contrary to it. And the Supreme Court has long held that the federal government has broad powers over immigration and borders.
The court has frequently determined that state laws seeking to regulate immigration take precedence over federal laws. In the case of 2012 Arizona vs. United StatesFor example, the court emphatically struck down an Arizona law that sought to crack down on the border and undocumented people.
Furthermore, since the country's earliest days, it has been a fundamental principle of constitutional law that states may not interfere with the operation of the federal government, including the application of federal law. In fact, this was precisely the argument that the Trump administration made against cities that resisted cooperating with Immigration and Customs Enforcement.
The fact that Abbott calls immigration an “invasion” changes nothing. The supremacy of federal law and the federal government does not cease even if there is an invasion.
Although the Constitution says in Article I, Section 10, that no state “shall engage in war, unless actually invaded,” the provision was intended to allow states to respond to enemy troops at a time when the federal government might be slow to respond due to the nature of the communications and transportation. Nothing in the clause implies that states can violate federal law or impede the federal government.
A state also does not have the power to ignore or disobey an order of the United States Supreme Court. But that's what Abbott is doing by ordering the Texas National Guard to stop federal agents from taking down the barbed wire. And it is worrying to see Republican governors openly applauding their lawlessness.
Of course, this is not the first time a state has attempted to ignore federal law. In the 1950s, Southern governors attempted to block court-ordered desegregation of schools.
One of the most famous cases involved Arkansas Governor Orval Faubus, who deployed the state's National Guard to prevent black students from attending Little Rock Central High School. The Supreme Court responded forcefully in Cooper vs. Aaron, holding that states have no right to disobey federal court orders in an opinion signed by all nine justices. President Eisenhower sent the federal National Guard to enforce desegregation in Little Rock schools.
The principle defended then dates back to the dawn of the republic and continues to apply today. If states can obstruct the federal government and ignore Supreme Court orders, the Constitution becomes meaningless. The governor of Texas is violating the Constitution and the stakes are high in this showdown.
Erwin Chemerinsky is an Opinion contributor and dean of the UC Berkeley School of Law. His latest book is “Worse than Nothing: The Dangerous Fallacy of Originalism.”
