On Tuesday, a three-judge panel of the Fifth Circuit Court of Appeals ruled that Texas cannot enforce its border control law, SB 4, because it conflicts with federal law that preempts the field of immigration. The decision is here. Jonathan Turley analyzes the issue here.
Briefly, Turley thinks the panel decision is a correct interpretation of the Constitution and of case law on preemption. The constitutional issue turns on the meaning of “invasion,” which the states are empowered to resist under Article I of the Constitution, and against which the federal government is required to defend the states under Article IV. For the moment, I don’t want to debate that conclusion. Let’s assume it is true that the best interpretation of the Constitution and existing case law is that states cannot act to stop illegal immigration because that is a federal role, even if the federal government has completely abdicated its responsibilities. What then?
Whether or not the influx of millions of illegals across the southern border is an invasion in constitutional terms, it certainly is an invasion in common parlance. And for a border state like Texas, it is a comprehensive disaster. The people of Texas plainly have a right to defend themselves against this evil. If being part of the Union makes it legally impossible to defend themselves, it is only right that they should consider whether they want to remain in the Union. This is doubly true if the problem arises from a malicious determination on the part of the federal government to abandon, indeed subvert, one of the basic responsibilities that Texas and other states have delegated to that government.
Of course, no state would secede over an issue of less than enormous importance. But for Texas and other border states–and perhaps for some non-border states as well–illegal immigration is an issue of unparalleled significance. Might a state like Texas legitimately decide that the federal government has so abandoned its duties under the Constitution that it has no alternative but to remove itself from the Union, and vindicate its citizens’ rights itself? I think such a decision, given the enormity of the issue of illegal immigration, would indeed be legitimate. Whether it would be well-advised is a question that should, in my view, be open for debate.
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