Who Gets To Secure The Border?
Texas v Department of Homeland Security Is Yet Another Constitutional Crisis In The Making
In one of those curiously detached rulings that only the Supreme Court can craft, the nine justices of that august body last week managed to set the stage for a clash of state and federal authority not seen since April, 1861, when General Pierre Gustave Toutant-Beauregard punctuated South Carolina’s insistence that Fort Sumter be evacuated with a cannon barrage1.
Specifically, on January 22, the Supreme Court issued a 5-4 ruling vacating an injunction preventing federal Customs and Border Protection agents from removing razor wire barriers erected across the Texas border with Mexico by the Texas National Guard.
The Biden administration secured a significant win over Texas Governor Greg Abbott on Monday after the Supreme Court voted to allow the removal of razor wire along the U.S.-Mexico border.
The Court voted 5-4 in approval of the White House's request to vacate an injunction from the Fifth Circuit in October, which blocked President Joe Biden's administration from instructing federal agents to cut down wire installed in Texas to deter illegal migration.
Exactly why the Supreme Court elected to vacate the injunction is not known at this time, as all that has emanated from the Supreme Court itself is the order vacating the injunction.
The application to vacate injunction presented to Justice Alito and by him referred to the Court is granted. The December 19, 2023 order of the United States Court of Appeals for the Fifth Circuit, case No. 23-50869, is vacated.
The application itself details numerous arguments as to why the injunction was inappropriate, but this order does not speak to any of them, nor does it expressly indicate whether the federal government would prevail on the underlying case, Department of Homeland Security, et al, v Texas.
What the ruling does do is put the Texas State government squarely in conflict with the federal government over how the Texas border with Mexico—and thus the United States border with Mexico—shall be securely maintained, and how the laws regulating passage across that border shall be enforced.
Civil wars are started over exactly disputes such as these.
Once again, I must begin with a shout-out to
who on her Substack manages to capture the human dimension of the border issue powerfully and succinctly.
I have the utmost compassion for the genuine immigrants1 who are simply trying to feed their families. I’m mad as all get out that these poor people are being used by forces that want to take down America.
There are indeed powerful humanitarian issues that are unavoidable when discussing the question of how to maintain the security and integrity of the United States southern border. We would be foolish as well as cruel to ignore those concerns entirely.
However, we would be equally foolish as well as cruel to ignore the very real legal issues that are also at play, and which arguably must take precedence over even humanitarian concerns. Nor are these legal issues even remotely novel. We do well to remember that, as far back as 2010, states such as Arizona have contested federal authority to police the border.
We do well also to remember that immigration is, under the Constitution, first, foremost, and exclusively a matter of law.
In apprehending the contest between Texas and the federal government in the form of the Department of Homeland Security, we must not lose sight of the legal realities.
Americans can and should debate what the law should be in all things, and especially should be engaged in helping formulate what this country’s immigration policies should be. That is what the people of a vibrant and healthy Republic do.
Americans should not ignore the realities of the laws as currently articulated, and that all Constitutional laws must be enforced if the notion of “the rule of law” is to have any meaning or substance. We cannot pick and choose which laws to follow. So long as an act of any legislature is not repugnant to the Constitution, it stands as the law, regardless of how wise or unwise, just or unjust, that law may be.
Whenever there is a clash of state and federal authority, we must look first to the Constitution for guidance as to which should prevail. For better or worse, the Constitution makes it quite clear that federal law, pursuant to the United States Constitution, is superior to any state law. That is the clear expression of the Supremacy Clause in the Constitution.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Thus comes the question with respect to immigration, what, if anything, can the states do to address the challenges of illegal immigration into the United States?
The ultimate resolution of the 2010 Arizona law2 provides some Constitutional framing. In particular, Justice Anthony Kennedy’s majority opinion concedes that the states do have relevant and valid concerns that demand legal remedy:
The pervasiveness of federal regulation does not diminish the importance of immigration policy to the States. Arizona bears many of the consequences of unlawful immigration. Hundreds of thousands of deportable aliens are apprehended in Arizona each year. Dept. of Homeland Security, Office of Immigration Statistics, 2010 Yearbook of Immigration Statistics 93 (2011) (Table 35). Unauthorized aliens who remain in the State comprise, by one es- timate, almost six percent of the population. See Passel & Cohn, Pew Hispanic Center, U. S. Unauthorized Immigration Flows Are Down Sharply Since Mid-Decade 3 (2010). And in the State’s most populous county, these aliens are reported to be responsible for a disproportionate share of serious crime. See, e.g., Camarota & Vaughan, Center for Immigration Studies, Immigration and Crime: Assessing a Conflicted Situation 16 (2009) (Table 3) (estimating that unauthorized aliens comprise 8.9% of the population and are responsible for 21.8% of the felonies in Maricopa County, which includes Phoenix).
Statistics alone do not capture the full extent of Arizona’s concerns. Accounts in the record suggest there is an “epidemic of crime, safety risks, serious property damage, and environmental problems” associated with the influx of illegal migration across private land near the Mexican border. Brief for Petitioners 6. Phoenix is a major city of the United States, yet signs along an interstate highway 30 miles to the south warn the public to stay away. One reads, “DANGER—PUBLIC WARNING—TRAVEL NOT RECOMMENDED / Active Drug and Human Smuggling Area / Visitors May Encounter Armed Criminals and Smuggling Vehicles Traveling at High Rates of Speed.” App. 170; see also Brief for Petitioners 5–6. The problems posed to the State by illegal immigration must not be underestimated.
We must observe that Arizona’s legislation, which was partially struck down and partially sustained, was passed in 2010. When Texas Governor Greg Abbott initiated Operation Lone Star in 2021, more than a full decade had elapsed—and the issues surrounding illegal immigration into the United States were and are still very much alive and unresolved.
Operation Lone Star has from the start been a matter of some controversy—as is perhaps inevitable in all matters pertaining to immigration into the United States.
The Texas Legislature passed House Bill 9 in September 2021, authorizing the state to dedicate almost $2 billion to border security over the next two years — bringing the total border security budget to almost $3 billion for the biennium. The bill included $750 million to build a state-funded border wall, which Abbott has asked his supporters to fund with donations. Private donors had contributed more than $55 million for the wall as of Feb. 11, 2022.
Texas Democrats have criticized Abbott and HB 9, saying they’re throwing money at short-term, law-enforcement-based solutions rather than taking a more comprehensive and humanitarian approach to border security. State Rep. Rafael Anchía, D-Dallas, criticized the initiative for lacking clear metrics to measure success.
What is not a part of that controversy is the volume of border crossings, which is acknowledged to be multiple orders of magnitude greater since 2020 than prior.
During the fiscal year that ended in September 2021, the number of enforcement actions by U.S. Customs and Border Protection, which includes detentions and arrests of migrants, reached more than 1.9 million, a 202% increase from the previous fiscal year.
At the southwest border, Customs and Border Protection saw a 278% increase in migrant encounters from fiscal year 2020 to fiscal year 2021 — and so far, that count has been higher in every month in the 2022 fiscal year compared to 2021.
As of December, 2023, the Customs and Border Protection reported a record number of encounters, far in excess of prior months and prior years.
It is also instructive to note that the overwhelming majority of encounters involve single adults and not families or unaccompanied minors.
During FY2023 single adults accounted for 61.17% of all encounters, families accounted for 33.18%, and unaccompanied minors accounted for 5.54%. Accompanied minors have not been a significant proportion of encounters since 2021.
It is perhaps instructive also to note that, from October, 2020, through January, 2021, monthly encounters were fewer than 80,000, and in February of 2021 immediately jumped above 100,000. Was this increase a reflection of the change in Presidential administrations? Certainly the possibility cannot be immediately discounted.
As Justice Kennedy made clear in the Arizona ruling, federal law pre-empts state law. The states may not, on their own initiative, craft laws which seek to apply penalties to various aspects of immigration, legal or otherwise.
However, Kennedy also articulates that state authority to enforce federal law is not entirely non-existent.
Consultation between federal and state officials is an important feature of the immigration system. Congress has made clear that no formal agreement or special training needs to be in place for state officers to “communicate with the [Federal Government] regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States.” 8 U. S. C. §1357(g)(10)(A). And Congress has obligated ICE to respond to any request made by state officials for verification of a person’s citizenship or im- migration status. See §1373(c); see also §1226(d)(1)(A) (requiring a system for determining whether individuals arrested for aggravated felonies are aliens). ICE’s Law Enforcement Support Center operates “24 hours a day, seven days a week, 365 days a year” and provides, among other things, “immigration status, identity information and real-time assistance to local, state and federal law enforcement agencies.” ICE, Fact Sheet: Law Enforcement Support Center (May 29, 2012), online at http:// www.ice.gov/news/library/factsheets/lesc.htm. LESC responded to more than one million requests for information in 2009 alone. App. 93.
Justice Kennedy also takes judicial notice of federal statute explicitly authorizing state involvement in immigration enforcement when appropriate3:
(10) In the event the Attorney General determines that an actual or imminent mass influx of aliens arriving off the coast of the United States, or near a land border, presents urgent circumstances requiring an immediate Federal response, the Attorney General may authorize any State or local law enforcement officer, with the consent of the head of the department, agency, or establishment under whose jurisdiction the individual is serving, to perform or exercise any of the powers, privileges, or duties conferred or imposed by this chapter or regulations issued thereunder upon officers or employees of the Service.
If we proceed strictly from the Arizona ruling (and, to be clear, a full exploration of immigration law would require us to go farther than just the Arizona case), we must conclude that, while the Constitution and federal statute unequivocally establish federal authorities with the primary duties for enforcing federal immigration statutes, the states are not commanded to be observers and bystanders only.
Nor indeed does the Constitution require the states to be completely passive observers and bystanders. While Article 1 Section 8 of the Constitution unequivocally establishes in several clauses that immigration regulation is a power explicitly delegated to Congress, Article 1 Section 10, in denying certain powers to the several States, creates key exceptions:
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
Does the influx of illegal immigrants at the southern border constitute an “invasion”? Legally, the answer is unclear, as an invasion is understood to be an hostile act4:
INVASION. The entry of a country by a public enemy, making war.
If we premise illegal immigration upon solely economic motivations, is a massive influx of illegal immigration necessarily an hostile act?
Any presumption of hostility is itself a matter of public debate. However, even so, the Democrat mayor of Eagle Pass, Rolando Salinas,, the Texas community at the center of the current dispute between Texas and federal authorities, concedes that illegal immigration is a problem and is not something that should be tolerated.
Salinas also said despite migrant crossing numbers dipping recently into the 150 to 200 per day range, down from thousands before, he doesn’t want "people coming here illegally."
"I’m all for legal migration, I don’t support people coming in and crossing the river and staying here in the United States," Salinas said. "I think those people should be sent back immediately because it’s not fair for the people that do it the right way."
Hearkening back to the Arizona case, even Justice Kennedy conceded the legitimacy of Arizona’s dissatisfaction and frustration with federal policy at the time.
The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.
Which brings us to the crux of the challenge being made by Texas: the federal government is simply not enforcing the law.
"Texas is holding the line at our southern border with miles of additional razor wire and anti-climb barriers to deter and repel the record-high levels of illegal immigration invited by President Biden's reckless open border policies. Instead of enforcing federal immigration laws, the Biden Administration allows unfettered access for Mexican cartels to smuggle people into our country," Abbott spokesperson Renae Eze said on Thursday.
Strangely enough, even the President appears to concede this point, as he argues a conspicuous lack of border security as a pretext for passing a current immigration bill into law.
It would give me, as President, a new emergency authority to shut down the border when it becomes overwhelmed. And if given that authority, I would use it the day I sign the bill into law.
The President of the United States explicitly concedes that the southern border is “broken”. If we look back to the Arizona ruling, there is a clear statement by the Supreme Court that it is the responsibility of the federal government to keep the border in an “unbroken” state—and no less than the President of the United States is acknowledging that this has not happened.
In this regard, Dementia Joe is joined by other members of the Democratic Party, such as Democratic Congressman Jared Moskowitz:
Moskowitz said, “[T]he speaker said no because Donald Trump said no. The speaker is Donald Trump’s no boy on this subject. Look, I’ll give Republicans credit for a second. They have been highlighting the border for a long time, and we were late to start addressing it. But now that we want to address it, now that we want to lower the amount of fentanyl coming in, now that we want to deal with nondocumented folks, now that we want to deal with supposed terrorists potentially coming into the country, now, the Republicans, controlled by one man, are saying, no, no, no, we need this for the next ten months, we need more of it, in fact, for the next ten months, so that we can use it in an election. Both things are true here. This is why people hate Washington. Both things are true, the Biden administration and Democrats were slow, but now that we’re here at the table, Republicans are like, no, no, let’s walk away.”
With the Democrats conceding that unacceptable levels of illegal drugs—especially fentanyl—are coming across the southern border, with over 137,000 unaccompanied minors encountered in FY2023 alone (and nearly 38,000 so far in FY2024), is Texas facing such “imminent Danger as will not admit of delay”?
I will pause here to note that I am quite deliberately not answering such questions. My focus is not to proclaim a singular “answer” to these questions, but rather to raise them, and ask that you, the reader, give serious consideration to what the answers should be.
Where the media reporting must stand corrected, however, is in its derisive dismissal of Texas Governor Greg Abbott’s stance on border security as being similar to South Carolina’s rationale for secession in 1860, based on little more than Abbott’s use of the phrase “compact between the United States and the States.”
South Carolina’s argument was that, because of the growing Abolitionist movement in the northern states, the state could not remain within the United States without suffering irreparable harm in the form of the ending of slavery5. However, this purpose was explicitly declaimed by Abraham Lincoln in his first inaugural address6 in March of 1861.
Apprehension seems to exist among the people of the Southern States that by the accession of a Republican administration their property and their peace and personal security are to be endangered. There has never been any reasonable cause for such apprehension. Indeed, the most ample evidence to the contrary has all the while existed and been open to their inspection. It is found in nearly all the published speeches of him who now addresses you. I do but quote from one of those speeches when I declare that “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.” Those who nominated and elected me did so with full knowledge that I had made this and many similar declarations, and had never recanted them. And, more than this, they placed in the platform for my acceptance, and as a law to themselves and to me, the clear and emphatic resolution which I now read:
“Resolved: that the maintenance inviolate of the rights of the States, and especially the right of each State to order and control its own domestic institutions according to its own judgment exclusively, is essential to that balance of power on which the perfection and endurance of our political fabric depend, and we denounce the lawless invasion by armed force of the soil of any State or Territory, no matter under what pretext, as among the gravest of crimes.”
In short, South Carolina was asserting a cause for secession which, as a matter of legal as well as political substance, did not exist, and which Abraham Lincoln explicitly avowed would not exist.
Texas is asserting a cause for its border actions which, as a matter of both legal and political substance, is acknowledged by all sides to exist.
The federal government has broken the compact between the United States and the States. The Executive Branch of the United States has a constitutional duty to enforce federal laws protecting States, including immigration laws on the books right now. President Biden has refused to enforce those laws and has even violated them. The result is that he has smashed records for illegal immigration.
Despite having been put on notice in a series of letters—one of which I delivered to him by hand—President Biden has ignored Texas’s demand that he perform his constitutional duties.
• President Biden has violated his oath to faithfully execute immigration laws enacted by Congress. Instead of prosecuting immigrants for the federal crime of illegal entry, President Biden has sent his lawyers into federal courts to sue Texas for taking action to secure the border.
• President Biden has instructed his agencies to ignore federal statutes that mandate the detention of illegal immigrants. The effect is to illegally allow their en masse parole into the United States.
• By wasting taxpayer dollars to tear open Texas’s border security infrastructure, President Biden has enticed illegal immigrants away from the 28 legal entry points along this State’s southern border—bridges where nobody drowns—and into the dangerous waters of the Rio Grande.
Under President Biden’s lawless border policies, more than 6 million illegal immigrants have crossed our southern border in just 3 years. That is more than the population of 33 different States in this country. This illegal refusal to protect the States has inflicted unprecedented harm on the People all across the United States.
Indeed, Governor Abbott is explicitly invoking Article 1, Section 10, Clause 3—the exceptions noted above to federal sovereignty—as the legal pretext for Texas’ actions.
Nor can we ignore the Constitutional reality that the primary responsibility of the President of the United States is to enforce the laws of the United States:
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
It is worth noting that, intentionally or otherwise, mayors of “sanctuary cities” such as New York, are actually in agreement with Governor Abbott on the harms of illegal immigration, to which he alluded separately when he publicly stated that Texas’ transportation policies for illegal immigrants to such cities would continue:
Republican Texas Gov. Greg Abbott sent a stark message to sanctuary cities on Monday, vowing his state's transportation of migrants to their areas would continue until the federal government takes action on the worsening border crisis.
"Texas has transported over 102,000 migrants to sanctuary cities. Overwhelmed Texas border towns should not bear the brunt of Biden’s open border policies. Our transportation mission will continue until Biden secures the border," Abbott wrote in a post on X.
Last September, Mayor Eric Adams of New York openly stated that the pressures of addressing the 110,000 illegal immigrants that have appeared in the Big Apple was an existential threat to New York City.
In a sharp escalation over the migrant crisis, Mayor Eric Adams claimed in stark terms that New York City was being destroyed by an influx of 110,000 asylum seekers from the southern border and said that he did not see a way to fix the issue.
“Let me tell you something New Yorkers, never in my life have I had a problem that I did not see an ending to — I don’t see an ending to this,” the mayor said on Wednesday night in his opening remarks at a town hall-style gathering in Manhattan. “This issue will destroy New York City.”
Mayor Adams would take that message directly into Mexico the following month:
In a room in Puebla’s Congress building featuring an ornate memorial to migrants who had died crossing the border, decorated with statues of angels and weeping children, he told reporters that one of his goals was “to communicate to the people of all the countries we are visiting that New York City has reached capacity and we don’t want to turn their aspiration for dreams into a nightmare.”
New York Governor Kathy Hochul, just days after the Supreme Court vacated the injunction against federal CBP agents removing barriers erected by the Texas National Guard, argued explicitly that border communities such as Eagle Pass, Texas, did not have the infrastructure to deal with a massive influx of illegal immigrants (emphasis mine).
As Governors representing over 100 million Americans, we write to call on Washington to work together to solve what has become a humanitarian crisis. The sustained arrival of individuals seeking asylum and requiring shelter and assistance, due to lack of Congressional action on infrastructure and policies, can only be addressed with federal organizational support and funding to meet the public safety and humanitarian needs of our local communities. With ongoing conflicts around the world, global migration is at a historic high. States and cities cannot indefinitely respond to the subsequent strain on state and local resources without Congressional action. Communities along the southern border – as well as interior states and cities across the country –lack the vast coordinated infrastructure needed to respond to the humanitarian and public safety concerns of those seeking lawful entry into the United States. America needs a federal solution that supports our economy, immigrants and fixes our immigration system.
Whether or not Texas is fully justified within the Constitution for its actions at the border is a question that ultimately must be adjudicated both in the courts and resolved by Congress. What is not up for debate is that Texas is responding to an issue that is real and is pressing and is of primary importance to states far beyond the southern border.
The intimations by the media to the contrary are simply propagandistic and a means to delegitimize the Texas position. They should be dismissed on their face because there are real issues that require real solutions at play here, not mere political posturings to which historical revisionism can be conveniently applied as a means of avoiding them.
While my purpose is always to foster greater thought and hopefully greater discussion on issues that impact people’s lives, I shall close this by restating points I made back in 2018:
No immigrant has any right or expectation of admission into the United States. 8 USC §1361 explicitly assigns to the immigrant the burden of proving he or she is eligible for admission. Lacking such proof, the mandate of the law is that said immigrant be denied entry into the United States. Congress has the power to alter that mandate, but thus far it has declined to do so.
No immigrant can simply cross the border into the United States, but must enter through established checkpoints. 8 USC §1325 makes it a crime to enter the United States but through established checkpoints. 8 USC §1326 enhances the sanctions for repeat violations of this statute. Congress can alter these statutes but thus far has declined to do so.
Laws can be changed. Where laws are seen as unjust one hopes they will be changed. Yet until they are changed, the laws on the books are the laws of this land, and, as such, they must be enforced. If we are to remain a nation of laws, these laws must be enforced until they are changed.
I will note that these sentiments are largely those of Justice Kennedy in concluding the 2012 Arizona opinion. We are not required to like the law, but so long as the acts of Congress are not repugnant to the Constitution, we are obliged to obey the law—and the President of the United States is obliged under the Constitution to see that the laws are faithfully executed.
Regardless of what defects may exist in current US immigration law—and we need not deny that such defects do, in fact, exist, even if we disagree as to what they are—until Congress musters the political will to rectify those defects, the immigration laws as enshrined in federal statutes must be enforced.
Texas Governor Abbott, New York Governor Hochul, and New York Mayor Adams all agree on one thing: those laws are not being enforced—willfully not enforced—and a solution to that lack of enforcement is needed immediately.
If the federal government simply refuses to enforce those laws, what is a state like Texas supposed to do? At what point is a state free to take action to protect its own interests which are being demonstrably harmed by federal inaction?
History.com Editors. Fort Sumter: Civil War, Battle & Location | HISTORY. 29 Aug. 2022, https://www.history.com/topics/american-civil-war/fort-sumter.
Arizona v. United States, 567 U.S. 387 (2012)
"invasion." A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier.. 1856. 1 Feb. 2024 https://legal-dictionary.thefreedictionary.com/Invasion
Avalon Project - Confederate States of America - Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union. 24 Dec. 1860, https://avalon.law.yale.edu/19th_century/csa_scarsec.asp.
Lincoln, A. Abraham Lincoln’s First Inaugural Address. 4 Mar. 1861, https://www.gutenberg.org/ebooks/9/pg9-images.html.
Ditto. And thank you for digging into the previous rulings regarding this.
I suspect a great many Americans are very frustrated at the ineptitude of our government. Our Constitution clearly indicates that the Federal government should protect our borders, yet it does not. Citizens have complained to the appropriate officials for years, even decades, yet the problems at our borders have not been resolved. I was delighted to see a movement to impeach Mayorkas, as he has utterly failed to do his job, as required by law. What else can a state such as Texas do, other than to take matters into its own hands? Can anyone suggest an alternate course of action?
The even larger issue is that government has failed to uphold hundreds of laws across our land. For example, our cities have laws and ordinances prohibiting squatting on public land, yet the homeless camp there anyway, and frequently with government aid! This is in violation of the law, but we citizens have no course of redress - other than protesting and subsequently voting the bums out of office. Our frustration is: UPHOLD THE LAW! That is the very essence of what is required by government officials, elected or unelected. Why, why, why, is that so much to ask?
Consequently, the voters may indeed stage a remarkable revolt at the voting booths this November. Frustration usually builds slowly, then heats to a boil.
By the way, the comment I posted elsewhere on Substack last Friday, “I stand with TEXAS!” had received 94 ‘likes’ by the following Monday morning.