Erwin Chemerinsky
Texas’ continuing dispute with the federal government over immigration enforcement goes to the very heart of our constitutional system. Gov. Greg Abbott, and those who are cheering him on, are challenging not only federal authority but also the power of the Supreme Court and ultimately the supremacy of the Constitution itself.
The dispute arose because Texas installed razor wire fencing along parts of the Rio Grande, among other unilateral measures at the U.S.-Mexico border. Texas officials say they did so to deter an influx of people crossing the border, many of whom are seeking asylum. The question is whether the federal government can remove the fence given its power over the border and immigration.
A panel of the conservative 5th Circuit U.S. Court of Appeals prohibited the federal government from removing the razor wire except for medical emergencies. Last week, however, in a 5-4 order without an opinion, the Supreme Court granted the U.S. solicitor general’s request that border agents be allowed to remove the razor wire.
That should have put the matter to rest for the time being. But the Texas National Guard and state troopers continued to put up concertina wire and block federal agents from accessing part of the border. On Wednesday, the Republican governor publicly challenged the Supreme Court’s ruling, vowing to “hold the line.” Abbott said Texas is under “invasion” and that the state’s right to defend itself “is the supreme law of the land and supersedes any federal statutes to the contrary.”
The Republican Governors Association issued a statement Thursday backing Abbott “in utilizing every tool and strategy, including razor wire fences, to secure the border.” Former President Trump has also defended Abbott and called on other states to send their national guards to support Texas.
This is frightening and just wrong as a matter of law. To begin with, Article VI of the Constitution makes the federal government supreme when it is acting within its authority, deeming any contrary state policies preempted. And the Supreme Court has long held that the federal government has broad powers over immigration and the borders.
The court has frequently found that state laws seeking to regulate immigration are preempted by federal law. In the 2012 case Arizona vs. United States, for example, the court emphatically struck down an Arizona law that sought to crack down on the border and undocumented people.
Moreover, since the earliest days of the country, it’s been a fundamental principle of constitutional law that states cannot interfere with the operation of the federal government, including federal law enforcement. In fact, this was precisely the argument the Trump administration made against cities that resisted cooperation with Immigration and Customs Enforcement.
Abbott’s calling immigration an “invasion” doesn’t change anything. The supremacy of federal law and the federal government doesn’t cease even if there is an invasion.
While the Constitution says in Article I, Section 10, that no state shall “engage in war, unless actually invaded,” the provision was meant to allow states to respond to enemy troops at a time when the federal government could be slow to respond because of the nature of communications and transportation. Nothing in the clause implies that the states may violate federal law or impede the federal government.
Nor does a state have the power to disregard or disobey a U.S. Supreme Court order. But that is what Abbott is doing in directing the Texas National Guard to prevent federal agents from taking down the razor wire. And it is distressing to see Republican governors openly cheering his lawlessness.
This of course is not the first time a state tried to disregard federal law. In the 1950s, Southern governors attempted to block the court-ordered desegregation of schools.
One of the most famous instances involved Arkansas Gov. Orval Faubus, who deployed the state’s National Guard to prevent Black students from attending Little Rock Central High School. The Supreme Court responded forcefully in Cooper vs. Aaron, holding that states have no right to disobey federal court orders in an opinion signed by all nine justices. President Eisenhower sent the federal National Guard to enforce the desegregation of the Little Rock schools.
The principle upheld then dates to the dawn of the republic and continues to apply today. If states can obstruct the federal government and ignore Supreme Court orders, the Constitution is rendered meaningless. Texas’ governor is violating the Constitution, and the stakes of this standoff are great.
Erwin Chemerinsky is the dean of the UC Berkeley School of Law. His latest book is “Worse Than Nothing: The Dangerous Fallacy of Originalism.”
