The Supreme Court will decide if the Texas GOP can seize control of the border

Texas Republicans are trying to rewrite the Constitution — and this Supreme Court could let them.

Men, women, and children carrying backpacks and bags wade through a waist-deep stream to reach the other side, forming a line of people.

Migrants cross the US-Mexico border in Texas. David Peinado/NurPhoto via Getty Images Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

For well more than a century, the federal government has enjoyed near exclusive authority over immigration policy, while states have largely been restricted to assisting in carrying out federal policies. The Supreme Court has reinforced this rule many times over many decisions, such as Truax v. Raich (1915), which said that “the authority to control immigration — to admit or exclude aliens — is vested solely in the Federal Government.”

Texas, however, now wants the Supreme Court to abandon this longstanding constitutional rule, and it thinks that the political tumblers have finally aligned in a way that would lead the Court to do just that.

Texas seeks to upend the longstanding balance of power between the federal government and the states through a law, known as SB 4, which allows Texas state courts to issue deportation orders that will be carried out by Texas state officials. The law is now before the Supreme Court in two “shadow docket” cases, known as United States v. Texas and Las Americas Immigrant Advocacy v. McCraw.

The Texas law will go into effect on Wednesday at 5 pm, unless the Supreme Court acts, so it is likely that the Court will hand down some sort of decision before then (although that decision could just be a brief order extending the deadline to some future date).

The Supreme Court is as conservative as it’s been since the 1930s, with Republicans controlling six seats on the nine-justice Court. And Texas’s case attempting to seize control of the Texas/Mexico border arrives at the justices’ feet at the same time that an unusually large wave of migrants are arriving at the border.

The reason why the federal government has historically had exclusive authority over nearly all questions of immigration policy is to prevent a single state’s mistreatment of a foreign national from damaging US relations with another nation. Indeed, Hines v. Davidowitz (1941) warned that “international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs” committed against foreign nationals.

Which isn’t to say that the United States must always treat foreign citizens with caution or deference — just that a decision that could endanger the entire nation’s relationship with a foreign state should be made by a government that represents the entire nation.

SB 4 is not allowed under Truax, Hines, and countless other decisions, including an Obama-era case involving a very similar Arizona law, Arizona v. United States (2012).

But the current Supreme Court has only a weak attachment to following precedent, especially when a precedent is widely disliked by modern-day Republicans. So there is at least some risk that the Court’s GOP-appointed majority will allow SB 4 to go into effect.

How does an unambiguously unconstitutional law wind up before the Supreme Court?

To a certain extent, an immigration-related conflict between a red state and the federal government was inevitable the minute a Democrat entered the White House. Under President Obama, Arizona’s Republican government enacted a similarly unconstitutional law, known as SB 1070, which imposed registration requirements on immigrants and which gave state police enhanced authority over suspected undocumented immigrants.

The Supreme Court struck down several key provisions of SB 1070 in Arizona, in an opinion which also reaffirmed that the national government, and not the states, must have primacy over immigration. “[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,” Justice Anthony Kennedy wrote for the Court in Arizona, “not the 50 separate States.”

But Kennedy is no longer on the Court, and he was replaced by the more hardline conservative Justice Brett Kavanaugh. Also gone is Justice Ruth Bader Ginsburg, who joined the majority opinion in Arizona, and who died in 2020 and was replaced by Trump appointee Justice Amy Coney Barrett.

If Kavanaugh and Barrett unite with the three most conservative justices, that’s five votes to overrule Arizona, and to bless Texas’s SB 4.

Yet, while Republican-led lawsuits pushing harsher US immigration policies are now a fixture of Democratic administrations, Texas might have a particularly strong political hand right now because of the unusually large number of migrants arriving at the southern US border. For most of the 2010s, US Customs and Border Protection reported about 400,000 to 500,000 “encounters” with migrants at this border every year. Now, that number stands around 2 million a year.

There are several reasons why this uptick in migration is happening now.

One of the biggest factors is political instability in many parts of Central America and the Caribbean. For many years, the so-called “Northern Triangle” countries — Guatemala, Honduras, and El Salvador — were a major source of migration, as citizens of those nations fled corruption, gang violence, and high levels of poverty. This migration remains ongoing, and is now augmented by migrants fleeing an economic and political crisis in Venezuela, and violence and political instability in Haiti, among other things.

Additionally, the United States recently relaxed its border policy because it could no longer point to the Covid-19 pandemic to justify extraordinary measures. In 2020, at the height of the pandemic, the Trump administration invoked a statute which allows the government to close the border in order to prevent the spread of a “communicable disease” that is present in a foreign country. This tight border policy remained in effect well into the Biden administration, until May of 2023.

This policy (which was known as “Title 42”) always stood on dubious legal grounds. It certainly wasn’t effective in keeping Covid from entering the United States. And the idea that we could prevent the spread of this “communicable disease” by locking down the border became less and less defensible as Covid both became ubiquitous in the United States, and ceased to be a global crisis.

By spring of 2023, even Justice Neil Gorsuch, a Republican appointed by Trump, openly mocked the suggestion that Title 42 could remain in place. “The current border crisis is not a COVID crisis,” wrote Gorsuch.

SB 4 is one of several illegal steps Texas has taken with respect to the border

Texas has since tried to augment a federal border policy that is widely viewed as inadequate with a series of dubiously legal policies. In addition to enacting SB 4, the state has constructed physical barriers — including razor wire fences and floating obstructions in the Rio Grande — intended to keep migrants out of the country (or, in at least one case, to cause them to drown while trying to enter).

In January, the Supreme Court ruled 5-4 that Texas could not use razor wire to prevent US Border Patrol agents from entering an area where migrants are present, with Chief Justice John Roberts and Barrett joining the Court’s three Democratic appointees.

President Biden, for what it is worth, agrees with Republicans that legal changes are necessary to limit border crossings. Indeed, he pressed Senate Democrats to negotiate a bipartisan bill that would make it harder for migrants to claim asylum, increase funding for immigration officials and detention facilities, and allow the government to close down border crossings if they exceed a certain level.

But, after Democratic and Republican negotiators agreed on a bill, much of the GOP abruptly pulled its support. According to Sen. Mitt Romney (R-UT), this happened because presumptive GOP presidential nominee Donald Trump told Republicans “he doesn’t want us to solve the border problem because he wants to blame Biden for it.”

And so, here we are, with an unpopular spike in southern migration overwhelming the US immigration system, and a Congress that is unable to address the problem because the leader of the GOP prefers chaos to a solution.

Texas Republicans, meanwhile, have their own answer. It just requires the Supreme Court to toss out more than a century of established law, and strip away the United States’ ability to speak with one voice on matters of foreign policy.

If Texas prevails in this lawsuit, the consequences will be unpredictable, and could be catastrophic. It would mean, as the Supreme Court warned in Hines, that states would gain broad leeway to act against foreign nationals — potentially endangering US relations with our allies, or worse.


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