June 16, 2021
By Dale Wilcox
Republican border state governors are standing up to the White House — even promising to continue border wall construction in their states. While the move is sure to create a battle over federal versus state jurisdiction, the challenge itself is undeniably good news to anyone who values border integrity.
Texas Gov. Greg Abbott recently announced that his state would enact a “comprehensive border security plan” that includes continuing wall construction that was scuttled by the Biden administration. This comes after Abbott declared a state of emergency on Memorial Day for a number of Texas border counties most affected by the lawlessness resulting from federal immigration priorities.
“While securing the border is the federal government’s responsibility, Texas will not sit idly by as this crisis grows,” Abbott said. “The state is working collaboratively with communities impacted by the crisis to arrest and detain individuals coming into Texas illegally.”
The plan gained further credibility with the news that Arizona Gov. Doug Ducey is enacting similar plans in his state, covering two of the most popular states for illegal entry by foreign nationals.
For the anti-borders crowd who will no doubt howl in protest at this development, it is simply a case of turnabout being fair play. During the Trump presidency, left-leaning states routinely defied the administration’s attempts to strengthen immigration policies.
This was seen most clearly when then-Attorney General Jeff Sessions sought in 2017 to deny federal law enforcement grants to states with policies limiting cooperation with federal immigration enforcement, also known as sanctuary laws. The move was blocked by several lower courts and appeals courts. Last year the Second U.S. Court of Appeals in Manhattan ruled that the Trump administration could indeed withhold the grants.
While the border state governors will have to traverse a legal quagmire before their plans could be put into action, they should be able to make a credible argument. The governors are invoking the Emergency Management Assistance Compact (EMAC), an agreement among all 50 states allowing them to share resources when governors declare an emergency. EMAC doesn’t violate the Compacts Clause of the Constitution, which says states can’t make compacts with each other without the consent of Congress, because EMAC itself was ratified by Congress.
While Sessions invoked the Supremacy Clause to compel states to comply, Biden’s Justice Department (DOJ) may do the same against Texas and Arizona. If that happens, it will raise an interesting point. The argument that the states are creating an obstacle to congressional aims should bring a response that it is, in fact, the Biden administration that is opposing congressional aims by its extreme anti-borders policies. This would create a question rarely heard in legal circles: What happens when states are pursuing congressional aims that have been all but abandoned by the executive branch?
The Biden DOJ is also likely to claim that Congress occupies the field of border security, that it displaces all state actions therein, and that wall-building is a part of border security. Such an argument may come down to how the courts define wall-building as a function of border security.
Should the case rise to the highest court in the land, it would be heard by a Supreme Court that recently handed down several unanimous decisions against the anti-borders legal agenda. In the hyper-polarized political climate that currently exists in our nation’s capital, unanimous Supreme Court decisions are something to pay attention to. The recent decisions suggest the justices — even those appointed by former Presidents Clinton and Obama — are alarmed by radical anti-borders interpretations of immigration law.
As we saw during the Trump administration, such issues take years to gain clarity, with numerous appeals from both sides. However, it is encouraging to see states push back when they are stuck with the consequences of this White House’s extreme, reckless immigration policies. As the full negative impact of these policies become more obvious to the American people, expect defiance from impacted states to escalate even further.
Dale L. Wilcox is executive director and general counsel at the Immigration Reform Law Institute, a public interest law firm working to defend the rights and interests of the American people from the negative effects of mass migration.
Also published at: Dale Wilcox, Border state governors rebel against Biden’s immigration chaos, The Hill, June 16, 2021.
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