Given the failure of President Biden to act on his Constitutional duty to protect the State of Texas from invasion, the Supreme Court pretty much had to let Governor Abbott step up to the task. The high court is retailing this as a procedural step — “a first-blush judgment,” as Justice Amy Coney Barrett put it today. Fair enough. The Nine, after all, has yet to be briefed on the merits of the dispute between the Lone Star State and America.

That dispute, under the caption United States v. Texas, raises constitutional questions of the first water. They reached the Supreme Court 12 years ago in a contretemps called United States v. Arizona. The high court struck down the Grand Canyon State’s similar effort to police its border with Mexico. It did so, though, over The Great Scalia’s vociferous dissent. Comes now Governor Abbott with Justice Antonin Scalia’s handiwork.

Mr. Abbott is no dummy. So porous has become the border, as a result of Mr. Biden’s inaction, that Texas faces what Mr. Abbott calls an “invasion,” and Arizona looks ripe for reappraisal. Hence, we speculate, the high court’s action today. It lets the Texas law go into effect, offering the state — and cities like New York — a respite while the courts or the President act. The parties will be working on merits briefs to lay before the Supreme Court.

The only real hints we have of the high court’s thinking so far comes not from an opinion of the court. It merely lifted the temporary stay that blocked Texas from repelling the invasion. The glimpse of the court’s reasoning is from a “concurrence” from Justice Barrett, joined by Justice Brett Kavanaugh. It notes that the court’s decision reflects “the relative consequences” of letting the Texas law go into effect versus putting it on hold pending litigation.

The Sun’s Supreme Court bureau ran that through an Acme brand kerosene-fueled gobbledygook disambiguator. The machine’s a bit cranky. It did, though, translate Justice Barrett’s point into the phrase: “You would have to be loco to let hundreds of thousands of illegals sneak across the border and get airlifted by taxpayers to cities around the land while the Supreme Court did nothing other than tie the hands of the Rangers and the National Guard.”

There are some dissents from the court’s reprieve today. Texas’ law, in Justice Sonia Sotomayor’s telling, “upends the federal-state balance of power that has existed for over a century.” That, suggests Justice Sotomayor, with Justice Ketanji Brown Jackson, defies the Constitution “and has been unequivocally rejected by the federal courts since the Civil War.” The dissenters point to the precedent set by, as you might have guessed, United States v. Arizona.

Federal authority, Justices Sotomayor and Jackson add, “is near exclusive when it comes to the admission and removal of noncitizens,” and, they aver, “it precludes States from regulating entry and removal in a patchwork across the Nation.” The two justices balk at the decision to let the Texas law go into effect without a formal ruling on the merits, explaining that “procedure can be just as consequential as substance.”

All the more reason, then, to weigh the merits of what TGS, in his Arizona dissent, called the states’ “inherent power to protect their territory.” His observation came at a time when, like Texas today, Arizona sought to enforce its border more aggressively than the feds. “As a sovereign,” Scalia said, “Arizona has the inherent power to exclude persons from its territory, subject only” to limits by the Constitution or Congress. Neither offers a bar to Texas’ law today.

Justice Sotomayor & Co. point to a lower court ruling that calls Texas’ policy a de facto “nullification of federal law.” Yet by our lights, any nullification is on the heads of Congress and President Biden, who are refusing to “protect” each of the states against “Invasion.” Such a characterization of what’s happening at the border looks less extreme with each passing busload or airplane unloading migrants at New York and cities across the land.