Texas Gov. Greg Abbott on Monday signed into law SB No. 4, which authorizes state authorities to arrest and order illegal aliens to return to the foreign nation from which they entered.
State authorities may do so without involving federal law enforcement or the labyrinthine federal process for adjudicating immigration claims.
But in the era of lawfare, bicameral legislative support and the signature of the state’s chief executive is not enough. Laws like Texas’ must receive the blessing of the federal courts. Although that is normally an obstacle to be avoided, here, Texas may hope that the federal courts hear a challenge to the law.
Current Supreme Court precedent stands in the way of Texas’ designs, but that obstacle will not be removed without a challenge like the one posed by the Lone Star State’s new law.
Since 2012, conservatives have been wandering in search of a legislative response to the problem of unchecked illegal migration across the southern border. That year, in one of his least creditable displays of legal reasoning, Supreme Court Justice Anthony Kennedy, writing for a five-justice majority, held that an Arizona law criminalizing illegal presence under state law violated the U.S. Constitution. How so? In the since-retired Kennedy’s estimation, Arizona’s effort to deter illegal migration in its territory might impinge on federal “policy choices that bear on this nation’s international relations.”
Thus, Kennedy conjectured that Congress had removed from the states any authority to legislate in the field of immigration enforcement.
Since the decision in Arizona v. U.S., state efforts to address mass illegal migration have been trapped in a series of arcane legal debates.
Is the mass movement of millions of self-styled asylum-seekers; economic-migrants; single, military-aged males; criminals; and terrorism threats from more than 160 countries, including our adversaries, an invasion within the meaning of Article IV, Section 4 of the Constitution? Do executive-branch policies like President Barack Obama’s Deferred Action for Childhood Arrivals or President Joe Biden’s en masse parole violate the president’s constitutional duty to “take care that the Law be faithfully executed”?
Do states even have a legal right to sue the federal government when it announces enforcement standards contravening the plain text of federal law? To date, none of these questions has been resolved in a way remotely favorable to stemming the tide of illegal migration.
The answer ought to be a good deal more straightforward: States, as sovereigns, have “the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress.”
That was the answer then-Justice Antonin Scalia gave in his dissenting opinion in Arizona v. U.S. But it’s the answer the majority foreclosed. And wrongfully so, because, as Scalia explained, “the power to exclude” is at the “core of state sovereignty.”
A political community that has lost the ability to expel those with no lawful right to be within its territory is not meaningfully sovereign. Thus, it cannot be presumed that Congress has extinguished that power. Then, as now, Congress has not enacted a law expressly negating that state power. Kennedy merely inferred that negation.
For much of the 20th century, the Supreme Court relied on penumbras and emanations to hallucinate protection for entirely novel individual rights, for instance, the constitutional right to contraception. With equal verve, the court used constitutional shadows—the supposed negative implications of features such as the commerce clause—to restrict the traditionally broad ambit of state sovereignty and defeat core exercises of that authority.
Yet that approach cannot continue indefinitely.
The ever-increasing demands of the human rights regime cannot always prevail against the older tradition of sovereign rights, which ultimately protect the citizens constituting that sovereignty.
Nowhere is a shift more necessary than in the field of immigration. The unconcealable anarchy at our southern border is a direct consequence of the court’s ruling in Arizona.
Executive branch authority is at its peak in matters of international relations and foreign affairs. By placing the issue of illegal immigration under these headings, Kennedy not only transferred sole authority over immigration enforcement to the federal government, he gave it primarily (and, in practice, almost exclusively) to the executive branch.
The executive branch, which ought to be implementing Congress’ legislative judgments on immigration policy, has instead developed the habit of resorting to its prosecutorial discretion and contriving its own policies that disregard restrictions on illegal entry and the necessity to deport certain classes of aliens. Thus, the preemption that Kennedy found allowed the executive branch to convert that field of policymaking into a near-total void of enforcement.
Some Texas lawmakers have stated that the SB No. 4 complies with Arizona v. U.S. and that they have no need to challenge that decision. Whether Texas lawmakers believe that or not, the Biden administration is going to take a more jaundiced view of the matter. And under current Supreme Court precedent, one can expect the federal government’s view to prevail in the lower courts.
The problem of mass illegal migration long predated Arizona v. U.S. Still, the Supreme Court made the situation materially worse by depriving the states of their rightful, historic ability to deal with the problem insofar as it came within their borders.
For that specific aspect of the problem, the court bears responsibility. But Kennedy is no longer on the court, nor are Justices Stephen Breyer or Ruth Bader Ginsburg, both of whom joined Kennedy’s majority opinion. Thus, in addition to persuading Justices Clarence Thomas and Samuel Alito, who dissented in Arizona, Texas would need to gain the votes of all three Trump-appointed justices, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Alternatively, Texas could lose one of those votes if they persuade Chief Justice John Roberts, who voted with Kennedy, to reconsider the reasoning in Arizona.
The court, as a whole, has good reasons to reconsider Arizona’s rationale. As a purely legal matter, Kennedy’s opinion ignored both the original understanding of state sovereignty, as well as the long-standing interpretive rule that core attributes of state sovereignty cannot be destroyed by implication.
Scalia described both in his dissent. The justices will also have an opportunity to survey the wreckage, so to speak, and appreciate that making immigration control an exclusively federal prerogative has produced domestic chaos and little of the international stability that Kennedy thought so desirable. Thus, if it comes, when it comes, the court should take its opportunity to right the wrong and overrule Arizona v. U.S.
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