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Guest Essay
By Stephen I. Vladeck
Mr. Vladeck is the author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”
The confrontation between state and federal officials in the border town of Eagle Pass, Texas, has created some wild hyperbole: From various commentators, it is the Fort Sumter for America’s second civil war; or the triumphant vindication of states’ rights at the expense of a weak president; or some twisted combination of both.
After the Supreme Court tentatively stepped in last week to rule that federal officials can remove razor wire that Texas installed along the Mexican border, many Democrats accused Gov. Greg Abbott of “defying” the Supreme Court, while many Republicans argued that Mr. Abbott should defy the court.
But what’s really happening in Texas isn’t a constitutional crisis. It’s a stress test for a potential constitutional crisis — and we’re all failing miserably.
The most recent escalation in the simmering feud between federal officials and Mr. Abbott over the state’s border measures came into greater public view after three migrants drowned in the Rio Grande by Eagle Pass. In its slow-burning effort to see how far a single state can push the existing envelope before the courts push back, Texas has ramped up its own efforts to deter unlawful immigration.
At first, those efforts mostly involved expanding the presence of National Guard and state law enforcement officers along the border. But since the middle of 2023, they have expanded both physically and in legal significance — including the placement of obstacles in the middle of the Rio Grande; the razor wire along a roughly 30-mile stretch of the border near Eagle Pass; and, most recently, the passage of new state legislation, set to go into effect in March, that effectively creates a state-level deportation system.
But the underlying dispute is over what U.S. immigration policy should look like. A real solution depends on striking a national balance between trying to disincentive and deter unauthorized entry into the country and treating those who nevertheless attempt such entry as fellow humans, at least some of whom have rights under federal laws to make the case for why they should be allowed to stay.
Congress has been unable to pass meaningful immigration reforms for decades — leaving the balance-striking to the discretion of successive presidents.
Legally, the constitutional law is quite clear: The federal government gets to set nationwide immigration policies and choose how to enforce them. And although states are free to assist in federal enforcement (or to decline to assist, in the case of so-called sanctuary cities), there is no serious argument that states have the authority to impede or supplant federal enforcement efforts. Federal supremacy is hard-wired into the Constitution, regardless of how vigorously we might oppose the policy choices that particular federal officials — or even the sitting president — make. Although the antebellum era witnessed an array of arguments from states for why they could resist federal statutes to which they objected, none of those arguments survived the Civil War.
That hasn’t stopped Mr. Abbott. In a remarkable statement issued last week, he invoked Article 1, Section 10, Clause 3 of the U.S. Constitution for the proposition not only that states have a federal constitutional right to defend themselves against “invasion,” but also that such authority “supersedes any federal statutes to the contrary.” In other words, so long as Texas is defending itself against what it believes is an invasion, conflicts between its actions and those of federal immigration officials should be resolved in Texas’ favor.
Given that the statement came just two days after he had been handed a temporary setback by the Supreme Court in one of the three pending border-related lawsuits between Texas and the federal government, it was viewed by many on the left (and in the media) as outright defiance of the justices’ ruling, if not a flashpoint for a burgeoning constitutional crisis. Meanwhile, right-wing media — and an alarming number of Republican elected officials — egged Mr. Abbott on, encouraging him to do exactly what his critics claimed he was already doing, that is, to ignore the Supreme Court in the name of defending Texas’ sovereignty.
The reaction from the left was wrong. All that the Supreme Court did last week was to wipe away, with no explanation, a lower-court injunction that was effectively barring federal officials from removing the razor wire that Texas had placed along the border. Nothing in the ruling stopped Texas from doing anything, so there was no way in which Mr. Abbott could “defy” the court, even if he wanted to. His public and in-court arguments may be — and are — incorrect, but it’s not a constitutional crisis just because he’s making them. And although some prominent Democrats have urged President Biden to federalize the Texas National Guard in response, such a move would be legally dubious on its own — and would serve only to escalate the political conflict.
The reaction from the right was far worse. From members of Congress to right-wing commentators, the idea that Mr. Abbott should simply ignore the Supreme Court quickly drew enormous traction. For everyone urging Mr. Abbott on, this made painfully clear that the constitutional principles just don’t matter; all that matters is winning. If an issue is popular — or divisive — enough, then using it to score political points takes precedence over all other considerations, including an actual policy fix on Capitol Hill, respect for the other branches of government, or fidelity to the basic structure of our constitutional system, to say nothing of the dangerous legal and political precedents it would set to upend all of those things.
And then there’s the court itself — which, with full knowledge of what’s happening on the ground, didn’t exactly help matters by issuing an unexplained ruling that divided the justices 5-4. Rather than providing guidance that might have helped to defuse some of the legal disputes and political tension, or at least speaking with one voice, the justices introduced further confusion.
All of this augurs poorly for a real constitutional crisis — where, armed with public support, some person or institution in our system openly defies the constitutional checks and balances imposed by another. The pushback, in such a case, is going to require nuance and statesmanship — nuance to make clear to the public exactly what the crisis is (and isn’t) and how it was provoked; statesmanship to provide at least some response from those of the same political ilk for why the long-term costs of such subversion of the Constitution outweighs the short-term benefits. If and when disputes arising from that crisis reach the Supreme Court, the justices need to do more than bury their heads in the sand — by both explaining exactly what the Constitution does and doesn’t require and acting in ways that don’t simply reaffirm the public’s lack of faith in the institution.
With that in mind, President Biden would be well advised to give a public address identifying facts and fiction about the administration’s immigration policies, especially as they compare with those of his predecessors. The goal is not a publicity stunt but rather an honest effort to identify what the current challenges are, how they align with (and differ from) the challenges of the past and what he’d like to do to meet them. Much of this information can already be found in the legal briefs the federal government has filed in these lawsuits and in other official government reports, but one can measure the rhetorical gap between what’s being argued in court and what’s being said on social media in light-years.
The courts, in turn, should not just reassert the federal government’s primacy when it comes to immigration policy but should explain why that primacy is so fundamental to our constitutional system, even when we don’t like the short-term implications.
All of this may be aspirational, but we ought to aspire to it. Because if what happened last week repeats itself when a constitutional crisis truly does come along, we’re going to have a heck of a time finding our way out of it.
Source photographs by John Locher/Associated Press, Adam Davis/EPA, via Shutterstock, and Sam Armstrong/ Getty Images.
Stephen I. Vladeck (@steve_vladeck), a professor at the University of Texas School of Law, writes the One First weekly Supreme Court newsletter and is the author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”
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