SCOTUS FUMBLES IN THE RED ZONE

All too often, the modern Supreme Court reminds you of a high school debate class: lots of fire and very little light.   

The US Constitution, Article 1, Section 10, prohibits individual States from going to war – “unless actually invaded or in such imminent Danger as will not admit delay.”

Here’s the question. If the individual sovereign States in the Union already have the constitutional power to defend themselves when invaded, then do they not have the sovereign power to enforce the lawless borders in the absence of the Federal Government’s criminal willingness to disregard existing immigration law? Or when the Federal Government ignores or breaks its executive responsibility and constitutional duty?

The question is relevant because there hasn’t been a time like this in our post-Civil War history as a Republic.

The State of Texas has worked through every step possible to plead, beg, conjugal, and threaten the US government into enforcing existing federal law for three years. That law already makes it a crime to enter the US illegally. For those claiming political refugee status (a surprisingly small number of the total), a legal process is also in place, which is also ignored.

The outright invasion of US soil is accomplished by simply walking across a border unhindered.  

It is a staggering event in world history – by both the numbers and the danger it represents to Texas and the Nation. I’ve written a half dozen articles on the disaster at the Southern border in the past three years, and now, ten million illegal aliens have flooded across the wide-open US Southern border, with the Texas-Mexican border being ground zero. They come from over 110-plus countries across the globe – and we know next to nothing about them. They were given a plane ticket, cell phone, clothes, cash, housing, and free medical care. Worse, got-a-ways, illegal aliens that cross the border with no contact with border agents at all may be another two million. (This doesn’t include the 15, 20, or 30 million – who knows? – illegal aliens already residing in the US.)

Texas, led by Governor Greg Abbot and Attorney General Ken Paxton, has, over the last two years, been deploying Texas law enforcement assets to the border to work on private and state-owned land to arrest and detain illegal aliens. But on January 10, 2024, Governor Abbot signed a disaster declaration after 325,000 illegals crossed the border in one month at the end of 2023. Texas authorities seized a key hot spot of entry in Eagle Pass on the Rio Grande River that was being overrun, called Shelby Park, and erected concertina wire across the 50-acre site.

The Biden gang immediately went to court, which ruled the Federal Government could enter and cut the wire, followed by an appeals court reversal of the lower court. This week, the Supreme Court (SCOTUS) had an emergency ruling that reversed that decision and returned the case to the lower courts, allowing the Federal Government to cut the concertina wire.

Now, the Governor and the Attorney General are standing defiantly under the Constitution. If the wire is cut, they will replace it.  

How SCOTUS reached its decision is inexplicable. This case will come back to haunt the Nation (as many of its decisions, such as the preposterous Pennsylvania election ruling in 2021 will) as it opens the door to yet another extra-constitutional ruling based not on the clear language of the Constitution and logic but sheer whimsy. Chief Justice Roberts and Associate Justice Amy Comey Barrett sided with the three radicals on the court, based on no discernible legal footing but evidently for personal reasons and emotionalism.

The first obvious question is, can Texas authorities do that? Can a sovereign state protect its borders if the national government deliberately refuses to carry out the existing federal laws to do just that?

(Photo Credit Eddie Gasper, Texas Tribune. Trash left on the banks of the Rio Grande)

Sitting unmolested in the middle of the discussion is the century-old evolution of federal versus state responsibility for immigration and the capture of those laws to the exclusive use of the post-war American ruling class. Missing is any concern for the welfare of actual American citizens who pay taxes – what both political parties have done is unforgivable, if not demonic. They have declared war on their own citizens. (As I write, an “immigration” plan is in the works for yet another “continuing resolution” on the federal budget that would increase legal immigration and reportedly allow only 5,000 illegal aliens into the US per day! Of course the UniParty in Washington and the Chamber of Commerce are giddy about the plan. You can’t make it up.)

As with so many activities, the Federal Government has assumed power over immigration through the Supreme Court, statute, and prerogative even though it has no enumerated constitutional authority.

The US Constitution neither uses the word nor confirms the enumerated power over immigration to federal control, much less the plenary power now entrusting near-total immigration function to the executive branch. In Article 1, Section 8, the Constitution states that Congress will “establish a uniform Rule on Naturalization.” The second reference is in the 14^th Amendment, granting citizenship to “All persons born or naturalized in the United States.”

Until the late 1800s, immigration was largely a state matter. In 1875, the US Supreme Court ruled in Henderson v. Mayor of New York that the various coastal states’ immigration laws were unconstitutional because Congress had exclusive power to regulate and control “foreign commerce.” The ruling was followed by further application of the Supremacy Clause (Article Vl, Clause 2) and the legal utility of the concept of plenary power, all of which federalized immigration matters without a Constitutional amendment.

Alas, it is an all too frequent event with all too predictable consequences.

As recently as 2012, the States’ role versus the Federal Government has been tested in the courts. The Arizona legislature passed a law that merely allowed local law enforcement to enforce the federal law concerning the employment status of illegal aliens. The Federal Government sued Arizona for enforcing existing federal law! In a 5-3 (one recusal) decision, SCOTUS ruled that the Federal Government has “broad, undoubted power over immigration and alien status,” which precluded [Arizona’s legislation].

Now retired Justice Anthony Kennedy wrote in the majority opinion, perhaps foretelling the  escalating crisis, “With [Federal] 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.”

How’s that working out for us?

In a powerful dissent, the late Justice Antonin Scalia wrote that [the Arizona law] helped enforce the [Federal] law more effectively.” Its provisions, he added, “[were] a defining characteristic of sovereignty: the power to exclude from the sovereign territory people who have no right to be there.”

Justice Clarence Thomas agreed, “[There] is no conflict between the ‘ordinary meanin[g]’ of the relevant federal laws and that of the four provisions of Arizona law at issue here.”

There is, however, a fundamental Constitutional duty that the Federal Government has ignored for too long: Article 4, Section 5 of the Constitution could not be more precise: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against Domestic Violence.

Indeed, Texas (and other southwestern states) have endured a 50-year invasion where the Federal Government has ignored its duty to the States and instead actively encouraged tens of millions of non-citizens to break US law as their first action entering the country. (Made more evident in the Federal Government’s refusal to sanction or punish the eleven states that have declared themselves “sanctuary states” and refuse to work with federal immigration authorities to detain criminal illegal aliens.

In the absence of coherently enforced immigration policies, Texas authorities must do what the Federal Government is unwilling or unable to do to stop a Nation-changing disaster.

After five decades, the political debate over illegal immigration, where the voters vote consistently for orderly and legal immigration and against unlawful entry – while Washington and big business interests continually sabotage those wishes – has come to a critical juncture. It is perhaps the last time to “get it right.” Texas voters should make their voices clear to the Legislature and Governor Abbott now – by every means possible.  And the American public should do so loudly in November of 2024.