On Monday, the Supreme Court voted 5-4—with moderate Chief Justice John Roberts and center-right Justice Amy Coney Barrett joining their liberal colleagues—in favor of the Biden administration, which had requested that the court permit its Border Patrol agents to cut or remove protective razor wire fencing installed by Texas officials along the besieged Rio Grande. The court’s ruling is simply astonishing.
In America’s federalist constitutional order, both the federal government and the states act as fully sovereign actors operating within their delineated spheres of legitimate governing authority. The federal government—which was itself initially created in the late 1780s by the then-preexisting states—is in no position whatsoever to demand that states deliberately undermine their own sovereignty. That is especially true when the federal government itself obstinately refuses to secure the nation’s territorial integrity, as has been the case throughout Joe Biden‘s disastrous presidency.
That both the federal government and the states may wield power as fully sovereign entities within our constitutional order is constitutional law 101.
As the late Justice Antonin Scalia wrote in the 2012 Supreme Court case Arizona v. United States, “As a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress.” (In Texas’ current case, there is no relevant constitutional limitation or congressional imposition.) Later in his separate Arizona writing, Scalia continued: “(A)fter the adoption of the Constitution there was some doubt about the power of the federal government to control immigration, but no doubt about the power of the states to do so.” (Emphasis added.)
Toward the end, Scalia approached his denouement: “But there has come to pass, and is with us today, the specter that Arizona and the states that support it predicted: A federal government that does not want to enforce the immigration laws as written, and leaves the states’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign states at the mercy of the federal executive’s refusal to enforce the nation’s immigration laws?”
It seems, sadly, that the answer is “yes.” Substitute “Arizona” for “Texas,” and nothing else has changed today.
The mass invasion now transpiring at the U.S. southern border is illegal, immoral, and unsustainable. Its scope is truly unprecedented in our history, posing a mortal threat to the nation. God bless Greg Abbott and the great state of Texas, who rightfully cherish their sovereignty and righteously refuse to bend the knee to the most lawless presidential administration in American history.