Texas Makes a Bid for Sovereignty

One of President Trump’s great achievements, regaining control of the border, could well be reversed if the Democrats regain the White House. That lends gravity to Texas’s effort to police its border with Mexico. The riders of the Fifth Circuit just ruled, by a vote of 10 to seven, that the Lone Star State has the power to arrest illegals within its boundaries. Yet liberal activists are planning to take this dispute, United States v. Texas, to the Supreme Court.There Texas will have to contend with an earlier high court precedent that limits the ability of states to police immigration. If the Fifth Circuit’s ruling is any guide though, that precedent, from Arizona v. United States, looks ripe for reappraisal. In 2012, the Nine had ruled against the Grand Canyon State when lawmakers there, confronting federal failure to regulate the border, tasked Arizona’s police with addressing the disruptive influx of illegals.Justice Anthony Kennedy, writing for the high court’s majority in Arizona, found that federal law preempted any state efforts to regulate the border — even though no one disputed that Uncle Sam was falling down on the job. “Arizona may have understandable frustrations with the problems caused by illegal immigration,” Justice Kennedy condescended, “but the State may not pursue policies that undermine federal law.”Justice Antonin Scalia’s dissent in Arizona stresses the sovereignty of states in our federal system. Its “defining characteristic,” he asserted, is “the power to exclude from the sovereign’s territory people who have no right to be there.” Each state had this power before the ratification of the Constitution, he said, and the charter “did not strip the States of that authority.” So federal power on this head cannot be “deemed exclusive.”The Fifth Circuit riders nod to The Great Scalia in Arizona by affirming that Texas, using its “historic, sovereign police powers,” can “legislatively protect its citizens from a surge of illegal aliens in response to an unprecedented border crisis and a declared invasion.” Yet the ruling, in a case first brought by President Biden’s Justice Department, sidesteps the preemption question. The riders reckon that the parties now contesting the law “lack standing.” Will that finding pass muster at the high court? Even if the Nine disagree with the Fifth Circuit and agree that the dispute can be weighed on the merits, there have been numerous changes to the high court’s personnel since 2012. One can envision the logic of Scalia’s dissent finding a more receptive hearing. Plus too, the costs, and policy implications, of unchecked illegal immigration are today even more pronounced in the years since Arizona was decided.Governor Greg Abbott says he means to upend Arizona. He touts Scalia’s dissent for “laying out a pathway” offering “a legal way for a state to go about the process of enforcing immigration laws.” The constitutional insight with which Scalia appraised Arizona’s immigration laws applies as readily to Texas’s. Quoth Scalia: “If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.”

Texas Makes a Bid for Sovereignty

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