Thursday, February 29, 2024

An old Scalia dissent is driving Texas’ immigration dispute with Biden

For more than a century, immigration and border control were seen as exclusively under federal control, and when states attempted to take a greater role, the courts shut them down.

Texas is now preparing to challenge this legal interpretation before the current conservative majority of the United States Supreme Court. And the outcome could depend on a single dissent in 2012 from the late conservative Justice Antonin Scalia.

Scalia insisted it was a myth that the Constitution gave the federal government exclusive power over immigration. He noted that most federal immigration laws weren’t put in place until the 1880s, and before that, states imposed their own limits on how many people could enter.

He called the United States an “indivisible union of sovereign states” and said lax enforcement of federal immigration laws deprives “sovereign” states like Texas and Arizona of the “power to exclude… people who have no right to be there. … States have the right to protect their borders against foreigners.”

Additionally, he argued that even when federal law supersedes state law, this should not prevent states from participating in the enforcement of federal law.

No other justice agreed with Scalia’s opinion; his vision of “sovereign” states was considered by many to be extreme and outdated.

But that dissent is now fueling the dispute over immigration and border control between Texas and the Biden administration.

And if the more conservative Supreme Court adopts Scalia’s view, it could redefine the balance of power between the federal government and the states, and pave the way for aggressive state enforcement of immigration laws .

Last week we offered a preview. By 5 votes to 4, the judges sided with President Biden’s Department of Homeland Security and overturning an appeals court order barring U.S. Border Patrol agents from cutting barbed wire installed by the state of Texas along the Rio Grande that prevented federal agents from patrolling the area.

But the one-line order was limited and said nothing about Texas’ power to stop migrants from entering the state, including with barbed wire along the river.

Texas Gov. Greg Abbott, citing Scalia’s 2012 dissent, vowed to continue the legal fight.

“The federal government has broken the U.S.-U.S. compact,” the Republican governor said in a statement released after last week’s Supreme Court order. “The executive branch of the United States has a constitutional duty to enforce federal laws protecting the states, including current immigration laws. President Biden has refused to enforce these laws and even violated them.

A day later, 25 Republican governors issued a statement saying they “stand in solidarity” with Abbott and Texas in using “all tools and strategies, including barbed wire fencing, to secure the border.”

Next week, the 5th U.S. Circuit Court of Appeals in New Orleans will hear arguments in the barbed wire dispute. If Texas wins, the case will likely return to the Supreme Court.

But a much more important affair is brewing soon.

In December, Abbott signed SB 4, a measure authorizing Texas police and judges to arrest, detain and deport migrants suspected of crossing the border illegally.

The move is seen as a direct challenge to the 2012 Supreme Court ruling that struck down a similar law in the country. Arizona case against the United States. It was this decision that motivated Scalia’s dissent.

“This is a frontal attack on federal primacy in immigration control, and the case will certainly go to the Supreme Court,” said Stephen Yale-Loehr, a law professor at Cornell.

Thomas Saenz, president of the Mexican American Legal Defense and Educational Fund, called the Texas measure “the most extreme encroachment on exclusive federal authority that we have seen in at least 50 years,” saying that “It goes beyond California Proposition 187 and Arizona law. SB 1070 seeking to establish a nationwide system of immigration courts and enforce deportation orders.”

He warned: “If that were the law, we could have 50 different immigration systems in this country. »

But he predicted that even a Supreme Court as conservative as today’s would not uphold the Texas law.

“For Abbott, this is essentially political theater. This will draw attention to him and inspire the base,” he said.

In early January, the Biden administration filed suit in Austin, the state capital, seeking to block Texas law to come into force on March 5 as planned.

“SB 4 is clearly unconstitutional,” said outgoing Associated US Atty. said General Vanita Gupta at the time. “Under the Supremacy Clause of the Constitution and long-standing Supreme Court precedent, states cannot pass immigration laws that interfere with the framework adopted by Congress. »

The lawsuit says it seeks to preserve the “exclusive authority of the United States government…to regulate the entry and removal of noncitizens” and that the nation “must speak with one voice on immigration matters.” “.

Immigration rights advocates have also expressed concern about the Texas measure, saying it could be used against large numbers of noncitizens living far from the border.

“This law will break up Texas communities,” said Adriana Piñon, legal director of the American Civil Liberties Union of Texas, which also filed a lawsuit to block the law. “It will strip people of their rights under federal law, with devastating consequences: families could be separated, more people could live in fear of law enforcement, and migrants could have a harder time getting there. fully integrate into our communities.

The Constitution establishes U.S. laws as “the supreme law of the land,” which states are required to uphold.

Scalia did not dispute this principle and agreed that states cannot pass or enforce laws that directly conflict with immigration laws passed by Congress.

“I accept as a given that state regulation is precluded by the Constitution when (1) it has been prohibited by valid federal law, or (2) it conflicts with federal regulation – when, for example, it admits those that federal regulations exclude, or excludes those whom federal regulations would admit,” he wrote.

But he disagreed with the Court’s majority that states like Arizona cannot use their police to enforce immigration laws in a way that goes beyond politics federal.

Writing for the court, Justice Anthony M. Kennedy said that “the national government has significant power to regulate immigration” and that “states cannot pursue policies that undermine federal law.”

The justices blocked three parts of Arizona’s law, including provisions that made it a crime for an “unauthorized alien” to apply for a job or not have registration documents.

But the court did not go so far as to block a fourth provision, considered highly controversial at the time, under which police can seek to “determine the immigration status” of anyone they arrest, detain or arrest if there is reason to believe that this person is “unlawfully” present in the United States.

For many, the ruling on Arizona’s law serves as a warning that conservative states should not pursue immigration measures that go beyond the policies and priorities set by the administration in Washington.

This understanding is now being tested.

Chief Justice John G. Roberts Jr., whose votes are largely conservative, joined Kennedy in the Arizona case and last week sided with the Biden administration in the wire dispute barbed wire in Texas.

Justice Amy Coney Barrett, a conservative, voted for the majority in the Texas case, alongside liberal Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.

Justices Clarence Thomas and Samuel A. Alito Jr., both conservatives, dissented in the 2012 Arizona case — although they did not join Scalia’s statement of dissent — and did the same last week in the Texas case, alongside fellow conservative justices Neil M. Gorsuch and Brett M. Kavanaugh.

If a federal judge in Austin or the 5th Circuit refuses to block SB 4, the justices will likely face another emergency appeal from the Biden administration by the end of this month.

Note: The content and images used in this article is rewritten and sourced from



Please enter your comment!
Please enter your name here

Most Popular

Most Trending