Photo: Andrew Caballero- Reynolds/AFP via Getty Images
The political firework known as SB- 4 — a Texas law that may provide state- level officials the power to enforce U. S. immigration law — is, unfortunately, doomed. Based on years of constitutional training and experience combined with thorough scientific investigation of the Constitution and appropriate law, I make this bold forecast.
Also: It just ca n’t be.
Often, legal study had go no further than that. Pretty much any lawyer or prosecutor may get the desired results and therefore refute some situation law or legal interpretation to support the outcome in the majority of cases. There’s often some undeniably” right” legal result to be discovered.
But on some troubles, there’s only one sensible answer. This was recently demonstrated by the Supreme Court’s unanimous ( and predictable ) rejection of the Colorado Supreme Court’s decision to exempt Donald Trump from the 2024 presidential election under the 14th Amendment. In the end, there was simply no way the justices would support a system where each state may decide whether and how to invalidate a presidential candidate, despite expert scholars’ compiled hopeful tomes articulating a opposed legal justification. That outcome may result in social chaos, and, in my opinion, it was never really involved. Sometimes you can see the future by simply asking,” Is there really some world where this is the outcome?”
A equally rational scientific method (you may call it “dumbed- down”, if you please, but I’m telling you it works ) applies to SB- 4. The Texas rules, which Governor Greg Abbott signed in December 2023 with expressive, self-congratulatory gusto, purports to give state law enforcement the authority to deport people who are illegally entering the country. Those functions are traditionally ( and, as we’ll discuss in a moment, constitutionally ) reserved exclusively to the federal government.
Only as Abbott certainly intended, SB- 4 has generated a political storm. However, the Texas chancellor has emerged as the contemporary master of border- based spectacle. Second, he sends busloads of migrants to liberal-leaning places in the Northeast and elsewhere, many of whom are actually people. Oh, you bleeding hearts want to yell about how we treat immigrants. Not so delicate then, are you? It was a callous, dehumanizing prank, but as social drama, it worked. Witness, for example, Democrat New York City mayor Eric Adams, who declared that the flow of workers” will eliminate New York City” and blamed the federal government for failing to address the state’s requirements. Adams ‘ comments were taken advantage of by Abbott’s fellow Republicans, who criticized President Joe Biden on border policy.
Then, Abbott ushered in SB-4. The political message behind it was as uninsightful and devastatingly effective as a Nolan Ryan heater: Do Joe Biden and his liberal bureaucrats in Washington refuse to defend the border? Well, I will. Do n’t mess with Texas — and all that. Keep in mind: Abbott’s a lawyer, a former practitioner and state judge. He is aware of what he is doing, and he is well-versed in SB-4, which is likely to be worse than that. Maybe he does n’t care. To play the renegade border enforcer who burned in a Bon Jovi-esque blaze of glory before those robed elitists in D.C.
Over the past few months, SB- 4 has endured quite the procedural roller- coaster. A federal district court judge nominated by Reagan placed the law on hold until further appeal, and Binden’s Justice Department raised the issue shortly before it became effective. However, the Fifth Circuit Court of Appeals temporarily overturned the district court, allowing the law to go into effect until the Supreme Court intervened and put the case back on hold.
Believe it or not, that’s the ( relatively ) sane part. As the Supreme Court expert Steve Vladeck noted, in a wild two- day stretch last week, the law went from” not in effect” at 4 p. m. on Monday, to “in effect” for four minutes, until 4: 04 p. m., to” not in effect” for the next 21 hours, until around 1: 05 p. m. on Tuesday, to “in effect” for eight hours and change, and then, at around 11: 00 p. m. on Tuesday, back to” not in effect”. As we live and breathe at this very moment, SB- 4 is not in effect— but then again, it took me three and a half seconds to type that sentence, so it might’ve changed again in the meantime.
If the federal courts ultimately decide to allow SB- 4, at the most fundamental level, it would lead to widespread unrest and conflict along our southern border and beyond. What’s to stop Arizona and New Mexico from adopting their own distinct enforcement mechanisms if Texas can empower its state and local officials to enforce immigration law? How about Michigan, New York, or Washington, which are either along the northern border? Or even non-border states, where law enforcement often encounter people without legal status? How would our numerous, well-established federal immigration enforcement organizations coexist with a smorgasbord of various state regimes? Do state-level police officers possess the necessary training and knowledge to patrol the border and enforce immigration laws? If we could n’t have a single, unified federal voice, how would we deal with issues involving immigration from other countries? We’d end up with the same fundamental problem that ultimately sank the 14th Amendment challenges: It would create untenable chaos to leave this issue to individual, state- by- state determinations.
Fortunately, the precedent here is Con Law, chapter- one- type stuff. Under the Constitution’s Supremacy Clause, federal laws generally are the” supreme Law of the Land” and pre- empt any effort by states to enforce their own laws in a given field. The Supreme Court has long held that” the authority to control immigration — to admit or exclude]noncitizens ] — is vested solely in the Federal government”. Way back in 1875, the Court recognized that “if it be otherwise, a single State]could], at her pleasure, embroil us in disastrous quarrels with other nations”. ( Sometimes, you just have to let the old-fashioned language do its thing. ) More recently, the Court in 2012 reaffirmed the long- maintained, uncontroversial proposition that the Feds hold “broad, undoubted power over the subject of immigration” and the status of noncitizens. We do n’t often associate law with this level of firmly rooted and clear-cutness.
Texas’s response, as noted above, is essentially that the Feds are n’t getting the job done, so we’ll do it ourselves. That’s a cool political tagline, and it might even be true, but it’s hokum as a matter of law.
As untenable as this all seems, SB- 4 will ultimately come before the U. S. Supreme Court and its 6- 3 conservative majority. You never know what the Court might do, and it’s engaged in some impressive acrobatics to justify partisan, policy- motivated outcomes. But I’m confident that two or more of the reasonable conservatives — Chief Justice Roberts and Justices Gorsuch, Kavanaugh, and Barrett — will see SB- 4 for what it is: a flagrantly, almost intentionally unconstitutional stunt that would create unworkable, state- by- state mayhem. SB- 4 simply ca n’t, and wo n’t, stand.
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