A decade-old Scalia dissent is now the driving force behind the Texas-Biden conflict over illegal immigration

(Robert Gauthier/Los Angeles Times)

A decade-old Scalia dissent is now the driving force behind the Texas-Biden conflict over illegal immigration

David G Savage

February 1, 2024

For more than a century, immigration and border enforcement have been seen as solely under federal control, and when states tried to take on a larger role, the courts ruled them out.

Texas is now in the process of challenging that legal interpretation with the Supreme Court’s more conservative majority. And the outcome could lead to a 2012 dissent from late conservative icon Justice Antonin Scalia.

Scalia insisted that it was a myth that the Constitution gave the federal government exclusive power over immigration. He noted that most federal immigration laws were not passed until the 1880s, and before that states set their own limits on who could enter.

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

Furthermore, he argued that even if federal law supersedes state law, it should not prevent states from participating in the enforcement of federal law.

No other justice has endorsed Scalia’s opinion; his view of ‘sovereign’ states was seen by many as extreme and outdated.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 new and more conservative Supreme Court adopts Scalia’s position, 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 offered a taste.


By a 5-4 vote, the justices sided with Biden’s Homeland Security Department and overturned an appeals court order that barred U.S. Border Patrol agents from cutting razor wire installed by the state of Texas along the Rio Grande and federal agents blocked from patrolling the area.

But the one-line order was limited and said nothing about Texas’ authority to deny migrants entry into the state, including with barbed wire along the river.

Texas Governor Greg Abbott, citing Scalia’s dissent, vowed to continue the legal battle.

“The federal government has broken the compact between the United States and the states.”

he the Republican

said after last week’s Supreme Court order. “The executive branch of the United States has a constitutional duty to enforce federal laws that protect states, including immigration laws currently on the books. President Biden has refused to enforce those laws and has even broken them.”

A day later, 25 Republican governors said they “stand in solidarity” with Abbott and Texas by “using every tool and strategy, including razor wire fences, to secure the border.”

Next week,


The 5th Circuit Court in New Orleans will hear arguments in the barbed wire dispute. If Texas wins there, the case will likely return to the Supreme Court.

But a much more important matter is coming up soon. In December, Abbott signed into law SB 4, a measure that would authorize Texas police and state judges to arrest, detain and deport migrants suspected of crossing the border illegally.

It was seen as a direct challenge to the Supreme Court’s 2012 decision striking down a similar law in Arizona vs. the United States. It was that decision that prompted Scalia’s dissent.

“This is a frontal attack on federal primacy in immigration enforcement, and it’s certainly going to the Supreme Court,” said Stephen Yale-Loehr, a law professor at Cornell.

Thomas A. Saenz,


president of

the Mexican American Legal Defense and Education Fund, MALDEF in Los Angeles,

called the Texas law “the most extreme infringement on exclusive federal authority we have seen in at least 50 years.” It goes beyond California Prop. 187 and Arizona’s SB 1070 by attempting to create a state-owned system of immigration courts and enforce deportation orders. If that were the law, we could have fifty different immigration systems in this country.”

He predicted that there would even be a conservative Supreme Court


did not enforce Texas law. “This is essentially political theater for Abbott. It will draw attention to him and inspire the grassroots,” he said.

In early January, the Biden administration filed a lawsuit in Austin to block the Texas law from taking effect on March 5.

SB 4 is clearly unconstitutional, Associate said

Atty. General Attorney General

Vanita Gupta. Under the Constitution’s Supremacy Clause and longstanding Supreme Court precedent, states cannot pass immigration laws that conflict with the framework established by Congress.

The lawsuit seeks to preserve the “exclusive authority of the United States government… to regulate the entry and removal of non-citizens. The United States must speak with one voice on immigration matters.”

Immigration rights advocates also expressed alarm, saying the Texas law could be used against large numbers of noncitizens living far from the border.

This law will disrupt Texas communities, says Adriana Pion, legal director at the ACLU of Texas, who also filed a lawsuit


block the law. It will strip people of their rights under federal law, with devastating consequences: Families may become separated, more people may live in fear of law enforcement, and immigrants may have a harder time fully integrating into our communities.”

The Constitution establishes U.S. laws as “the supreme law of the land” that states must follow.

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

“I accept as a given that state regulation is excluded by the Constitution when (1) it is prohibited by a valid federal law, or (2) it conflicts with federal regulation when, for example, it admits those who would be excluded by federal regulation, or exclude those who would be permitted by federal regulations,” he wrote.

But he disagreed with the court’s majority, which held that states like Arizona cannot use their police to enforce immigration laws in ways that go beyond federal policy.

To write


in court,

earlier than

Judge Anthony


Kennedy said the “national government has significant power to regulate immigration,” and that the “states should not pursue policies that undermine federal law.”

The justices blocked three parts of the Arizona law, including provisions that made it a state crime for an “unauthorized alien” to apply for work or fail to carry registration documents.

But the court stopped short of blocking a fourth provision that was considered highly controversial at the time. It says police may attempt “to determine the immigration status of any person they stop, detain, or arrest if there is reason to believe the person is “unlawfully present in the United States.”

For many, the Arizona ruling was a warning that conservative states should not pursue immigration enforcement that goes beyond the policies and priorities set by the administration in Washington.

That insight is now being put to the test.

Chief Justice John G. Roberts Jr. joined Kennedy in the Arizona case, and he sided with the Biden administration last week in the Texas razor wire dispute.

Judge Amy Coney Barrett cast a key vote for the majority


Judges Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.

Justices Clarence Thomas and Samuel A. Alito Jr. dissented in the 2012 Arizona case, though they did not join Scalia’s dissent and did the same last week in the Texas case, joined by Justices Neil M. Gorsuch and Brett M. Kavanaugh.

If a federal judge in Austin or the 5th Circuit declines to block SB 4 from taking effect, the justices will likely face another imperative from the Biden administration in late February.


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