Last Monday, the Supreme Court made its first foray into a longstanding conflict over who is in charge of the United States-Mexico border: the United States government or Texas’s Republican Gov. Greg Abbott.
In a 5–4 decision, the Court temporarily permitted federal officials to cut razor wire barriers set up by the Texas government, which had prevented US Border Patrol agents from entering an area where immigrants sometimes cross into the United States. This decision, moreover, came in one of several disputes between Texas and the United States over border policy — with many GOP-led states now backing Abbott.
Under existing law, it is well established that the federal government is in charge of nearly all questions of immigration policy and may override state immigration policies that conflict with its goals. As the Supreme Court said in Arizona v. United States (2012), “[I]t is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States.”
But it is unclear whether the current Supreme Court, with its 6–3 Republican supermajority, will honor this longstanding balance of power between the national government and the states, which has been in place at least as far back as the Court’s 1941 decision in Hines v. Davidowitz.
Though the Court’s Monday order in Department of Homeland Security v. Texas was a victory for the Biden administration, it was also an ominous sign that many of the justices are eager to shift power away from the federal government — and toward state officials like Abbott, who are eager to impose more draconian enforcement policies.
The case involved an extraordinary attack on the federal government’s primacy over immigration. Texas erected razor wire barriers along a river in Eagle Pass, Texas, that physically prevented federal Border Patrol agents from entering the area, processing migrants in those areas, or providing assistance to drowning victims. According to the DOJ, the Border Patrol was unable to aid an “unconscious subject floating on top of the water” because of these barriers.
Federal law, moreover, provides that Border Patrol agents may “have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States.” So Texas claimed the power to use razor wire to prevent federal officers from performing their duties, in direct violation of a federal statute. Nevertheless, four justices dissented from the Court’s order allowing the Border Patrol to cut the razor wire when necessary to do their jobs.
This dispute over razor wire is one of at least three ongoing legal disputes between Texas and the United States over who controls the border. The Biden administration also sued Texas, in a case known as United States v. Abbott, seeking to remove a 1,000-foot floating barrier Texas erected in the Rio Grande near Eagle Pass. At least one body was found trapped in this barrier.
Meanwhile, a third case, United States v. Texas, challenges a Texas state law that purports to give state judges the power to issue deportation orders. That law will take effect in early March unless a court intervenes.
At least two of these lawsuits — the razor wire case and the challenge to the state-authorized deportations — should be slam dunks for the federal government under decisions like Arizona and Hines. But Republicans have long railed against federal primacy in the immigration space. And, as the narrow vote in the razor wire case suggests, many of the GOP-appointed justices appear to have embraced their political party’s stance on this issue.
Why the federal government has virtually exclusive authority over immigration
So why do states play such a diminished role in immigration policy? A partial answer can be found in the Constitution’s Supremacy Clause, which states that federal law and federal treaty obligations “shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
This is why the Homeland Security case — the razor wire case recently decided by the Supreme Court — should have been a clear-cut victory for the federal government. There is a federal law explicitly stating that Border Patrol agents may enter other people’s land “for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States.” Under the Constitution, that law is supreme over any state law or policy.
This principle, that federal law overcomes state law when the two conflict, is known as “preemption,” and preemption is particularly strong in the immigration context. As the Supreme Court held in Hines, preemption in immigration cases extends not just to federal laws that explicitly conflict with those in a state, but also to any area where Congress has enacted a “complete scheme of regulation” governing an aspect of US immigration policy.
Hines involved a Pennsylvania law that required non-citizens 18 years of age or older to register with the state, “receive an alien identification card and carry it at all times,” and to present this card upon demand to police officers and other state officials. At the time, federal law also required non-citizen immigrants to register with the federal government, but the federal law did not provide for ID cards or specify many of the requirements imposed by the Pennsylvania regime.
In striking down this Pennsylvania law, the Court warned that states must play an exceedingly limited role in immigration policy because of the risk that a single state could damage US relations with other nations. “One of the most important and delicate of all international relationships,” Hines explained, “has to do with the protection of the just rights of a country’s own nationals when those nationals are in another country.” The Court added that “international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs” inflicted on the citizens of one nation by another.
That does not mean that the United States must treat every single foreign national with caution or deference. But it does mean that, if the United States decides to risk an international incident by treating a foreign national harshly, that decision should come from a government that is accountable to the entire American people — and not just to the people of one state.
“The Federal Government, representing as it does the collective interests of the forty-eight states, is entrusted with full and exclusive responsibility for the conduct of affairs with foreign sovereignties,” the Court said in an opinion that was handed down before Alaska and Hawaii became states. Thus, “for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power.”
One corollary to this rule of federal supremacy, Hines also held, is that comprehensive federal regulation over immigration-related matters preempts state regulation that touches on similar matters, even if the federal law does not explicitly say that state laws are preempted. In the Court’s words,
where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.
The same rule should apply to the not-yet-in-effect Texas law permitting state courts to issue deportation orders. Just like the Pennsylvania registration scheme at issue in Hines, Texas is stepping into an area that Congress has comprehensively regulated with its law allowing state courts to order deportations. Federal law provides for a network of immigration officials and specialized courts that determine which immigrants may remain in the United States and which ones must be deported. Texas may neither “curtail or complement” these courts with its own state-level immigration system.
Nevertheless, state laws seeking to undermine Hines now seem likely to arise whenever a Democrat is in the White House. The 2012 Arizona case involved such a state law, known as SB 1070, which sought to “discourage and deter the unlawful entry and presence of aliens” by giving state police new authority to arrest and detain individuals they had “probable cause to believe ... has committed any public offense that makes the person removable from the United States.”
Yet while the Supreme Court in 2012 was quite conservative, it did not bite on this effort to undercut Hines and instead blocked several key provisions of SB 1070. Arizona was a 5–3 decision, with Republican appointees Chief Justice John Roberts and Justice Anthony Kennedy crossing over to vote with three liberal justices (Justice Elena Kagan, a liberal Obama appointee, was recused from the case).
Texas’s deportation law is probably best understood as an attempt to relitigate the Arizona case, but to do it with a much more conservative, and much more partisan, Supreme Court. Since 2012, Kennedy left the Court and was replaced by Trump-appointee Brett Kavanaugh — a fairly hardline conservative who dissented from the recent Homeland Security order. Meanwhile, Justice Ruth Bader Ginsburg, a liberal feminist icon, died in 2020 and was replaced by conservative Justice Amy Coney Barrett (though Barrett, it is worth noting, joined the majority in Homeland Security).
If Hines is overruled or undermined, in other words, it will not happen because of any change in American law or the Constitution. Rather, it will happen solely because the Court’s personnel has changed — and the new justices tend to vote with the Republican Party.
Texas’s arguments in the floating barrier case are less frivolous than their arguments in the other two cases
Hines is much less of a factor in the Abbott case, the one challenging the floating barrier blocking a stretch of the Rio Grande, because that case turns not on an immigration law but on a federal statute intended to keep major American waterways unobstructed.
The floating barrier at the heart of the Abbott case, according to two federal judges who ruled against Texas in this case, “is roughly 1,000 feet long, made up of large four-foot orange buoys fastened together with heavy metal cables and anchored in place with concrete blocks placed systematically on the floor of the Rio Grande.” It also features “a stainless-steel mesh ‘anti-dive net’ extending two feet into the water.”
This barrier appears to be responsible for at least one death by drowning — an unidentified victim who most likely was a migrant attempting to cross the southern border into the United States
The federal government challenges this barrier not under a federal immigration law but under a statute providing that “the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited,” and forbidding the construction of any “wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures” in a “navigable river ... of the United States” without approval from the Army Corps of Engineers.
This case was previously heard by a three-judge panel of the United States Court of Appeals for the Fifth Circuit, a far-right court that frequently acts as a rubber stamp for legal theories offered by MAGA litigants. The three Fifth Circuit judges initially assigned to this case, however, included two Democrats and one Republican — and they split along party lines, with the majority agreeing that the floating barrier violates the federal statute.
That three-judge panel’s decision is no longer in effect because the full Fifth Circuit agreed to rehear the case in a process known as “en banc” — a process that, among other things, allows the full court’s right-wing majority to reconsider decisions that were randomly assigned to panels with a Democratic majority.
In any event, the panel divided on whether the particular stretch of river that contains the floating barrier qualifies as a “navigable” waterway under the relevant federal law.
Judge Dana Douglas, the Biden appointee who authored the panel’s majority opinion, pointed to the fact that federal law defines what constitutes a “navigable” waterway quite expansively. Among other things, the relevant federal regulation provides that “a determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity.”
Douglas also points to several official federal documents which concluded that the relevant section of the Rio Grande is navigable, including a 2011 determination by the Army Corps that this river is navigable from “the Zapata-Webb county line upstream to the point of intersection of the Texas-New Mexico state line and Mexico,” and a 1984 determination by the US Coast Guard that the Rio Grande “was listed among the navigable waters of the United States pursuant to treaties with Mexico and for Coast Guard regulatory purposes.”
In dissent, Judge Don Willett, a Trump judge, essentially argues that these determinations by expert federal agencies were wrong and that they misread two longstanding treaties.
It’s doubtful that Willett, a lawyer with no training in engineering, hydrology, or maritime navigation, reached a more accurate conclusion than two federal agencies with considerable expertise in such matters. But Willett does make a plausible case that the relevant section of the river has not historically been used very much by commercial vessels. Among other things, he points to a 1975 Army Corps study which found that “there was ‘no [then-current] commercial activity occurring within’ that stretch of the river.”
So this does appear to be an edge case. It’s not surprising that migrants would prefer to cross the Rio Grande at a narrow point that does not lend itself to easy commercial navigation.
Nevertheless, given that federal regulations explicitly state that “a determination of navigability, once made, applies laterally over the entire surface of the waterbody,” Willett is on very shaky ground by trying to second-guess a series of official determinations that the Rio Grande is navigable — many of which predate the Abbott litigation by decades.
Gov. Abbott’s public rhetoric about these disputes has focused on his worst legal argument
On Wednesday, shortly after the Supreme Court ruled against him in the razor wire case, Abbott released an angry statement accusing the federal government of breaking “the compact between the United States and the States” by opposing Abbott’s preferred border policies. He also claimed that he has the authority to act against the federal government’s wishes because he “declared an invasion under Article I, § 10, Clause 3 to invoke Texas’s constitutional authority to defend and protect itself.”
This is, to put it mildly, a terrible legal argument.
The clause of the Constitution that Abbott references provides that “no State shall ... engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” One thing that immediately stands out after reading this language is that it does not authorize any state to do anything. Rather, this clause is a prohibition on certain state actions; it forbids states from waging “War” except in limited circumstances.
It is very odd to read a provision of the Constitution that limits state power as giving a state the power to violate federal law.
Abbott’s argument that a rush of migrants trying to enter the United States constitutes an “invasion,” moreover, was rejected by no less of an authority than James Madison. In an 1800 document, Madison wrote that “invasion is an operation of war ... And as the removal of alien friends has appeared to be no incident to a general state of war, it cannot be incident to a partial state, or a particular modification of war.”
In other words, undocumented migrants from non-hostile nations are neither an “invasion” nor are they something a state can wage “War” against.
Federal courts, moreover, have previously agreed with Madison. As one federal appeals court concluded in a 1996 opinion, “[I]n order for a state to be afforded the protections of the Invasion Clause, it must be exposed to armed hostility from another political entity, such as another state or foreign country that is intending to overthrow the state’s government.” Immigration, even by people who do so illegally, does not constitute “armed hostility from another political entity.”
All of which is a long way of saying that, if the courts apply longstanding legal principles, Abbott should lose all three of these cases — and he should absolutely lose the two cases seeking to undermine Hines’s conclusion that states may only play an extremely limited role in setting immigration policy because of the danger that a state may harm the US’s relationship with a foreign power.
But Abbott is betting that the Supreme Court’s current majority won’t care what established law has to say about his border policy.
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