The state of Texas’s face-off with the U.S. federal government over the right to enforce immigration has caught the attention of legal professionals around the country. The key point of contention is whether or not Texas can take matters of immigration enforcement into its own hands under the banner of “self-defense”. This issue has come to the fore as a result of the ongoing litigation: United States v. Texas.
Under scrutiny is a 2023 statute known as Senate Bill 4 that Texas has enforced, which criminalizes certain immigration-related offenses at the state level. The U.S. District Court for the Western District of Texas preliminarily halted Texas from enforcing this statute in February 2022, noting that it was preempted by federal immigration law.
The opposition to Senate Bill 4 from the U.S. Court of Appeals for the Fifth Circuit suggests that Texas may not prevail in its attempt to enforce state-level immigration laws. Accepting Texas’s stance could potentially lead to a chaotic mix of immigration enforcement regimes across states, undermining the federal interest in having a uniform immigration law.
As quoted by Governor Greg Abbott, this legislative initiative was grounded on the State War Clause article of the U.S. Constitution that allows a state to engage in war without Congressional authorization when “actually invaded”. But this raises the question: Can the entry of non-citizens be equated with an invasion?
This interpretation of the State War Clause to include immigration as invasion, however, clashes with the broad and established power over immigration, as stated in Arizona v. United States by the U.S. Supreme Court. If Texas’s interpretation were to be accepted, we may end up with a patchwork of immigration enforcement regimes run at the state level – a development that Justice Sonia Sotomayor observed would threaten the federal authority over admissions and removal of non-citizens.
The Constitution empowers Congress to establish a uniform rule of naturalization. Creating a consistent immigration enforcement approach throughout the U.S. aligns with our past practices, considering its numerous intersections with U.S. foreign relations and treaty obligations.
Lessons from Trump v. Anderson illustrate the risks of allowing state-by-state enforcement, which threatens federal interests and can cause nationwide disruptions. In Texas’s ongoing litigation with the U.S. government over immigration rights, the likely path forward is the enforcement of a uniform policy governed by federal legislators and officials rather than individual states invoking war rights.