On January 22, the Supreme Court permitted the U.S. Department of Homeland Security to remove Texas’s razor wire along the Southern Border. Texas responded by installing more border wire. Texas also “invoked” the state’s constitutional authority to defend and protect itself. Twenty-five governors wrote a letter backing Texas, explaining that “Texas has every legal justification to protect the sovereignty of our states and our nation.”
How much do you know about state authority over immigration? Let’s play “Two Truths and a Lie” to find out.
A. The Constitution acknowledges that states have the right to self-defense against invasion.
B. Texas is defying the Supreme Court in continuing to place razor wire.
C. At the Founding, the States asserted their sovereign authority to exclude persons from their territories, in other words, to control immigration.
Let’s take these statements one at a time:
A. TRUTH!
True! Article I, section 10, clause 3 of the Constitution says: “No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” In other words, while the people conferred upon the federal government the primary responsibility to protect each State against invasion, the States retained their respective sovereign prerogatives to repel invasion. At the Virginia Ratifying Convention, James Madison explained that States “are restrained from making war, unless invaded, or in imminent danger. When in such danger, they are not restrained.” James Madison, Debate From Virginia Ratifying Convention (June 16, 1788).
The question of what constitutes an “invasion” and what powers accompany a state’s prerogative to repel an invasion are less clear cut.
B. LIE!
The Supreme Court only allowed the Federal Government to cut Texas’s wire, which is on state and private land, while Texas’s legal demand that the Federal Government stop affecting the wire makes its way through the court. The Supreme Court never said Texas must stop laying wire, and the Federal Government never asked Texas to stop laying wire.
C. Truth!
True! As Justice Scalia explains in his Arizona v. United States concurrence in 2012, before the adaptation of the constitution of the United States, each state had the authority to prevent an influx of persons. The question was whether the Constitution stripped them of that power. Justice Scalia said no. For one, the text doesn’t indicate that the Constitution took away states’ authority, because while the Constitution establishes that the federal government shall “establish a uniform rule of naturalization throughout the United States,” no provision eliminates the states’ ability to exclude individuals. Also, when the Alien Acts proposed that the President be allowed to remove certain aliens, several states objected, arguing that States had the sole power to exclude. Finally, New York law required ships to disclose details of their passengers, which stood up to court challenge because the judge reasoned that the Constitution never stripped New York of its sovereign authority to regulate the entrance of foreigners.