The Myth That States Can’t Defend Against Illegal Immigration

Illegal immigrants pass through coils of razor wire while crossing the U.S.–Mexico border in El Paso, Texas, on March 13, 2024. John Moore/Getty Images

Commentary

Texas authorities trying to defend their state against illegal immigration are being met with howls of outrage.

The leftist propaganda media smear them. Law professors, posing as experts on a subject most have never researched, claim that Texas authorities’ legal case is “constitutional nonsense.” The Constitution, they say, “clearly” forbids a state from responding to the flow of illegal immigrants.

The most insulting of these critics accuse Texas authorities of trying to “nullify” federal law—implicitly comparing their conduct to that of pre-Civil War slave states.

There is never any shortage of promoters of unlimited power. Currently, they are acting as shills for the Biden administration. You may recognize their tactic: Assert that the truth of their “party line”—whether on climate science, vaccines, or the Constitution—is simply beyond dispute. If anyone disagrees, then marginalize him as a crackpot or even as a dangerous extremist.

A few years ago, we saw this tactic put into operation in another constitutional dispute by defenders of the Affordable Care Act (Obamacare). Obamacare mandated that all Americans obtain federally approved health insurance. When some doubted the mandate’s constitutionality, leftist commentators claimed that it was “clearly constitutional within the powers of the Constitution’s Commerce Clause” (Article I, Section 8, Clause 3). They labeled doubters as fomenters of chaos and “clearly wrong.”

But it turned out that the promoters of centralized power were the ones who were wrong. Although the Supreme Court upheld the mandate as a tax, it also ruled that Congress’s power to “regulate Commerce” does not include forcing people to buy things they don’t want.

Congress responded by repealing the mandate.

In this case, too, it is the power promoters—not Texas state authorities—who are “clearly wrong.”

The Claims of Federal Power Advocates

Some of their “legal” arguments really are based on policy rather than the Constitution. An example is their claim that allowing a state to defend itself against illegal immigration would complicate foreign relations.

Questions of policy should be for the politicians and the people, not for the courts. Moreover, as the late Justice Antonin Scalia once pointed out:

“Even in its international relations, the Federal Government must live with the inconvenient fact that it is a Union of independent States, who have their own sovereign powers [even if it is] a nuisance and a bother in the conduct of foreign policy.”

Promoters of federal power also have some other constitutional arguments. They can be grouped into three general propositions:

• Texas is unconstitutionally trying to “nullify” federal law.
• The Constitution grants the federal government exclusive power over immigration, so states may not address the subject. (Justice Sonia Sotomayor so argued when dissenting from an intermediate order in United States v. Texas.)
• Although the Constitution recognizes that states may respond to “invasion,” that term means only an attack by a foreign military force. It does not include a movement across the border by unauthorized migrants—even 10 million of them.

But upon examination, each of these arguments melts like an ice cube under a Texas sun in July.

Claim: Texas Is ‘Nullifying’ Federal Law!

The claim that Texas is “nullifying” federal law is the most ridiculous of the charges against Texas. In fact, the “nullifiers” are not Texas authorities but many of their opponents.

As generally understood, “nullification” is the doctrine that a state may formally proclaim a federal law inoperative within the state’s boundaries. The doctrine presupposes that the federal law is unconstitutional and interferes with the powers reserved to the states, as recognized by the Ninth and 10th Amendments. The doctrine is actually extra-constitutional rather than constitutional.

But Texas authorities are not trying to void a federal law. They are trying to enforce federal law. And they have a perfect right to do so. Here is what the Constitution’s Article VI says on the matter:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.”

Again, the genuine nullifiers are not the Texas authorities. The genuine nullifiers are (1) the “sanctuary” cities and states that are deliberately subverting federal law and (2) the Biden administration, because of its imperfect compliance with the Constitution’s mandate that the president “take Care that the Laws be faithfully executed” (Article II, Section 3).

Not only are they the real nullifiers, but their nullification is particularly egregious. This is because, unlike previous nullifiers, they don’t have any basis for concluding that the law they are disregarding is unconstitutional. The Constitution both authorizes congressional immigration restrictions (in Article I, Section 8, Clause 10) and acknowledges them (in Article I, Section 9, Clause 1, discussed below).

You may have heard the wry comment that when leftists accuse their opponents of something—in this case, nullification—they probably are doing it themselves.

Q.E.D.

Claim: ‘Federal Regulation of Immigration Is Exclusive; the States Have no Role!’

The next constitutional claim by illegal immigration supporters is that federal jurisdiction over immigration is “exclusive.” This means that the states have no power over the subject whatsoever.

But this claim is contradicted by both the Constitution’s wording and the history surrounding its adoption.

Before the Constitution created the federal government, each state was fully sovereign. The states had ceded some authority to Congress through the Articles of Confederation, but that did not create a government. The Articles were a treaty arrangement, much like NATO today. The Confederation Congress was a coordinating body comparable to NATO’s North Atlantic Council.

The Constitution’s ratification transferred some (“enumerated”) sovereign powers to the new federal government. Under Article VI, federal laws adopted pursuant to those powers (but not laws adopted outside of them) are the “supreme Law of the Land.”

The Constitution does give the federal government exclusive authority over a few subjects—either by using the word “exclusive” or by prohibiting state action on that subject.

But in all other areas where the federal government may act, the states may do so on a subordinate basis as well. As Alexander Hamilton wrote in “Federalist” No. 32, they have “concurrent authority.” Immigration is one such area.

In fact, the Constitution specifically recognizes state concurrent jurisdiction over immigration law. The portion of Article I, Section 9, Clause 1 addressing voluntary immigration includes the following words:

“The Migration ... of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight.”

To better understand this, let’s rephrase it from the negative to the positive and translate it into modern English. Here’s what we get: States may decide whom to admit or exclude, and Congress may override their decisions only after 1808.

The conclusion that states enjoy subordinate concurrent authority over border crossings makes perfect sense. As Justice Scalia noted, the states retain partial sovereignty, and border control is a fundamental aspect of sovereignty.

More on the ‘Exclusive Federal Power’ Myth

Immigration is not the only area in which people impatient with limitations on central power have claimed that the federal government has “exclusive” jurisdiction. Some say the feds have exclusive authority over foreign affairs and foreign trade. They ignore the fact that the Constitution contains only limited “exclusivity” language on those subjects. (It’s in Article I, Section 10.) They also ignore the deliberate decision of the 1787 Constitutional Convention to leave the states with the authority to impose (in the absence of congressional action) embargoes against foreign governments.

Others have claimed that only the federal government may regulate interstate commerce. Still, others maintain that only the feds may address Indian affairs—despite a wealth of historical and legal evidence that the states also have a role in Indian affairs.

Those who follow the careers of promoters for centralized power know that they often are not constrained by inconvenient facts.

Claim: ‘Illegal Immigration Is Not Invasion!’

The Constitution (Article I, Section 10, Clause 3) limits state military powers but recognizes states’ reserved authority to use military force against invaders:

“No State shall, without the Consent of Congress ... keep Troops, or Ships of War in time of Peace ... or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

Promoters of federal power rejoin that this is a limit on the states, not a grant. That’s true. But a limit assumes there is something to be limited. In this case, that “something” is the states’ reserved authority to protect their own borders. Several founders reinforced this point, including James Madison and John Marshall (who became the chief justice), both at the Virginia ratifying convention.

To understand this better, let’s also convert this clause into its positive sense:

“Any state may keep troops and ships of war in time of war, ... and engage in war ... if actually invaded or in such imminent Danger as will not admit of delay.”

When faced with this wording, promoters of federal power respond that “clearly” the Constitution’s word “invaded” means only military attack by a foreign power. Some federal appeals courts (although without much investigation) have subscribed to this view.

But as we might say in Montana, “That dog won’t hunt.”

When you investigate the question for a while, you find that it is far from “clear” that the constitutional word “invaded” includes only armed attacks from foreign powers. When you investigate it some more, you learn that it is not even plausible.

Suppose a mob of civilian migrants marches up to the border and forces its way through by sheer muscle power and body weight. Can anyone say with a straight face that this isn’t an “invasion?” Or that state authorities can’t do anything about it?

That scenario is not far-fetched: It actually happened in El Paso, Texas, on March 21.

Then there’s the fact that when the Constitution was written, the terms “invade” and “invasion” included nonmilitary, unauthorized border incursions. This was not merely “metaphorical” use, as some commentators assert. It was part of these words’ core meanings.

Massachusetts scholar Andrew Hyman and I recently researched and co-authored a law journal article on state-reserved war powers. As part of our research, we examined 13 founding-era English dictionaries to see how they defined “invade,” “invader,” and “invasion.” Twelve of the 13 featured definitions that encompassed unauthorized, nonmilitary incursions.

A few days ago, I uncovered a 14th founding-era dictionary. It is Charles Marriott’s “New Royal English Dictionary,” published in 1780—just seven years before the Constitution was written.

One of the dictionary’s definitions of  “invader” was “one who encroaches or intrudes.” One of its definitions for “invasion” was “an encroachment.”

What of common usage outside the dictionaries? Usually, when 18th-century speakers and writers referred to invasions, they meant military actions. But that’s simply because most invasions are supported militarily. There were plenty of nonmilitary incursions that 18th-century speakers considered to be invasions.

For example, attacks across a border by criminal gangs were called “invasions.” Illegal immigration in flat-bottomed boats was an “invasion.” Both Benjamin Franklin and the Pennsylvania Legislature characterized peaceful but unauthorized migration into their state as an “invasion.”

The response to this evidence from defenders of illegal immigration has been mostly to ignore it.

Conclusion

Justice Scalia wrote, “Though it may upset foreign powers—and even when the Federal Government desperately wants to avoid upsetting foreign powers—the States have the right to protect their borders against foreign nationals, just as they have the right to execute foreign nationals for murder.”

So Texas state authorities are on sound constitutional ground.

They are also on sound moral ground. They are defending their state and their country against people who would violate both. They are upholding justice against the lawless types who seek to cut their way to the front of the line ahead of those who (like my mother and both sets of grandparents) followed the rules when immigrating here.

One can only wonder at the mentality of creatures who would attack state officials for performing their duty and defending their country and the cause of justice.

Robert G. Natelson, a former constitutional law professor who is a senior fellow in constitutional jurisprudence at the Independence Institute in Denver, authored “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2015). He is the co-author of “The Constitution, Immigration, Invasion, and the War Powers of States,” published by the British Journal of American Legal Studies (2024).

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.