By John Abbotoy - January 12, 2024

Last week, the United States Department of Justice announced that it will be suing Texas to stop enforcement of Texas Senate Bill 4, a law intended to allow Texas law enforcement to help enforce federal immigration law. You can read the complaint here.

If I were advising Governor Abbott, here’s what I would tell him: You are uniquely situated to be a hero by acting to stop the long-standing immigration crisis. The State and much of the nation are standing ready to support you in this effort. Here is what you must do: pose a credible threat of noncompliance with any federal order, whether administrative or judicial, that would stop you from doing what is necessary to protect Texas, and more than that, the American nation. You could call this the Old Hickory Option: “John Marshall has made his decision, now let him enforce it!”

Allow me to explain.

Insults To State Sovereignty

We should start by taking a trip down memory lane, to a similar case resolved late in President Obama’s first term (i.e., before he undertook those powers to rewrite immigration law via executive order, an action which he himself had previously described as imperial in nature). My concern here is the political calculus rather than the legal merits, but the arguments from Arizona are a necessary predicate to have on the table.

The Biden Department of Justice’s legal case against Texas will, in many respects, seek what they claim to be a straightforward application of Arizona vs. United States, 567 U.S. 387 (2012). In that case, Arizona (like Texas) had adopted a suite of laws that gave Arizona law enforcement the ability to investigate and detain individuals suspected to be illegally present, or illegally working, in the United States. The Court – with Justice Kennedy writing for the majority – struck down the Arizona laws in their entirety, reasoning that the Constitution gives Congress such broad authority over the regulation of immigration that States are preempted from taking any action with respect to immigration (an argument based on what legal scholars call “field preemption” – a scenario where Congress has passed such comprehensive regulation pursuant to constitutional powers that States may not step into that subject matter whatsoever, even if the particular laws in question do not actually conflict with federal law).

Writing a partial dissent but concurring in the holding, Justice Scalia argued that the States, as dual sovereigns in our constitutional system, had always retained “the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress.” In technical terms, then, Scalia favored the application of “conflict preemption” to the Arizona laws – a much narrower inquiry that would only overthrow State law upon a showing that a State law specifically conflicted with a federal law regarding a matter in which the federal government properly should be supreme. As persuasive evidence, Scalia marshaled a host of evidence from our nation’s founding and early history, touching on the close relationship between immigration (the right to exclude) and sovereignty. Citing Emer de Vattel, the Federalist Papers, precedent, and the constitution itself, Scalia argued that: (i) the States are sovereigns in the American system, (ii) the right to exclude is inherent to sovereignty (and widely held to be so during the time of the adoption of the Constitution), (iii) the States had the right to exclude prior to the adoption of the Constitution and did not cede that right in the Constitution, (iv) that States frequently exercised that right following the Constitution’s adoption and (v) that the Constitution itself evidences the right of States to defend their own territory (e.g., the invasion clause, which allows States engaging in war in the case of invasion: “[n]o State shall, without the Consent of Congress, . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” Art. I, §10, cl. 3). In conclusion, Scalia mused that for much of our nation’s history, “there was some doubt about the power of the Federal Government to control immigration, but no doubt about the power of the States to do so.”

My concern here is not really the legal merits of the case. Texas’s fine Solicitor General’s office surely will make legal arguments about as well as can be reasonably expected. Texas – which obviously created a vehicle for confronting Arizona when it passed SB4 – will no doubt glean from Scalia’s wonderful dissent in crafting its answer to the DOJ, and in all the subsequent appeal briefs, as it should. The composition of the Supreme Court has shifted since 2012, and perhaps Texas has a shot at overturning that decision on the merits of the legal arguments alone.

But as the governor of a sovereign State, you cannot absolve yourself of your responsibility to protect the citizens of Texas by simply passing the file over to your lawyers and washing your hands. There are some political lessons that you should draw from Scalia’s dissent in Arizona.

First, consider what the American political tradition holds a State to be, and the necessary consequences thereof: States are sovereigns, vested with not just a right, but a duty, to protect their citizens. What does it mean for your sovereignty when you are told you cannot perform a core function of the sovereign, at a time of crisis when that function is desperately needed? How should we expect a sovereign to act when, to use Scalia’s own words, it is “deprive[d] … of what most would consider the defining characteristic of sovereignty?”

Second, consider how the current legal immigration regime ratchets in a way that favors lawlessness, and works against the safety of your citizens: Congress – by virtue of having legislated on immigration – has purportedly preempted you from doing a thing about it. No matter that the federal government makes a structured policy of not enforcing statutes (n.b., the administration uses so-called prosecutorial discretion and resource constraints as a rationale for not faithfully executing the law, but always has ample resources for suing States dealing with the fall-out from its negligence). Biden’s DOJ has no similar resources to contend against States that enact sanctuary policies – policies that much more squarely conflict with federal law. Thus we are forced to conclude that the federal government’s policy is to not faithfully execute the law, to stop States that attempt to stand in the gap, and to tolerate States that adopt policies that directly undermine federal statute (but accord with the federal government’s policy of negligence).

The Immigration Crisis As A Regime Crisis

The federal government’s ongoing, ever-worsening failure to provide a secure border amounts to a regime-level crisis, making the situation at issue in Arizona seem quaint by comparison. To be sure, this has been a slow boiling crisis – a perennial issue since the Reagan administration – and although elegant commentators occasionally rise up to yell “Stop!”, although thinktanks do very thankless and detailed work detailing the issue, although the citizens have expressed through repeated elections that they strongly prefer a secure border, nothing happens. An unholy alliance of corporate profiteers seeking cheap labor and an activist class dedicated to demographically reshaping America has been effective at ensuring that would-be border hawks at the federal level are stymied, or more often, pressured into turning-coat.

This 40-year crisis has now reached . . .

[SNIP]