For Abbott, the enactment of SB 4 caps years of loud posturing and badmouthing of the Biden administration on the dangers of immigration and “open borders.” Among other provocations, Abbott has ordered the state’s national guard to line the Rio Grande with razor wire, bused over a hundred thousand migrants to so-called “sanctuary cities” like New York and Chicago, and declared that Texas is facing an “invasion” akin to a state of war. Such maneuvers play to the MAGA base of the Republican party, and align closely with former President Donald Trump’s campaign promises to stage the “largest deportation effort in the history of our country” should Trump win back the White House in November.
The question arises: Could Antonin Scalia, the famed right-wing judicial “originalist” who died in 2016, rise from the grave and provide constitutional cover for SB 4?
SB 4 was supposed to go into effect on March 1, but has been tied up in court as a result of lawsuits brought by the U.S. Justice Department and the ACLU on behalf of two Texas-based immigration advocacy organizations and the County of El Paso. The litigation has ping-ponged through the federal system, briefly reaching the Supreme Court, which on March 19 issued an order allowing the law to go into effect pending a decision on its constitutionality by the 5th Circuit Court of Appeals, which has jurisdiction over Texas. In the meantime, the Circuit has put the law on hold. A three-judge panel heard oral arguments on April 3, and a ruling is expected in the coming weeks.
At first glance, as the plaintiffs contend, SB 4 appears unconstitutional on its face for conflicting with federal immigration law and running afoul of the Supreme Court’s 2012 decision in Arizona v. United States, which struck down several provisions of a similar anti-immigration state statute.
The ACLU and the advocacy groups it represents also contend SB 4 will lead to family separation and rampant racial profiling. Even the government of Mexico has weighed in, advising that it will not accept migrants deported from Texas as a result of SB 4.
Abbott, whose resumé includes stints as a justice of the Texas Supreme Court and the state’s attorney general, understands the criticisms and seems eager for a fight. “We think that Texas already has the constitutional authority to do this, but we also welcome a Supreme Court decision that would overturn the precedent set in the Arizona case,” he said at the December signing ceremony for the law. What’s more, he added, “Justice Scalia wrote a dissenting opinion in that case, pretty much laying out a pathway that he thought would be a legal way for a state to go about the process of enforcing immigration laws.”
The question arises: Could Antonin Scalia, the famed right-wing judicial “originalist” who died in 2016, rise from the grave and provide constitutional cover for SB 4? The answer depends on the current Supreme Court’s willingness to overturn or significantly modify its holding in Arizona v. United States.
In the Arizona case, the Supreme Court reviewed a statute that made it a crime to be present in the state without lawfully registering with the federal government, and to work in the state without federal authorization. Local police were permitted to verify the immigration status of those suspected of being undocumented, arrest suspected violators without warrants, and transmit their findings to federal immigration authorities to facilitate deportation proceedings. The provisions gave rise to the statute’s nickname as the “Papers Please” law.
By a margin of 5-3, with Justice Anthony Kennedy writing for the majority and Justice Elena Kagan recusing herself due to her prior involvement in the case as U.S. solicitor general, the Supreme Court overturned the provisions that created new immigration-based state crimes and approved of warrantless arrests. The court, however, upheld the immigration-status check provision, but narrowed it to checks made during otherwise lawful arrests for ordinary non-immigration crimes.
Justices Clarence Thomas and Samuel Alito, Justice Scalia wrote separate opinions concurring with the majority’s ruling on status checks but dissenting from the remainder.
At the heart of both the majority opinion and the dissents is a thorny constitutional doctrine called “preemption.” In the most basic sense, the doctrine instructs that when state and federal law conflict, federal law displaces, or preempts, state law because of the Supremacy Clause (Article VI) of the U.S. Constitution. Kennedy and the majority determined the three Arizona provisions they invalidated were preempted by the federal government’s “broad, undoubted power over the subject of immigration and the status of aliens.”
Scalia took strong and colorful exception to Kennedy’s reasoning. Like Gov. Abbott today, he argued that the Arizona statute did not conflict with federal law, but complemented the federal system, making immigration enforcement more effective.
Referring to the United States as “an indivisible union of sovereign states,” Scalia argued: “As a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress.”
It was a “myth,” he continued, that the states had no power under the Constitution to exclude people from their borders. To the contrary, he wrote: “[I]n the first 100 years of the Republic, the states enacted numerous laws restricting the immigration of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks.”
Prefiguring Gov. Abbott’s “invasion” rhetoric with almost eerie precision, Scalia cited the Constitution’s “Invasion Clause” (Art. I, §10, cl. 3), which stipulates:
“[N]o State shall, without the Consent of Congress,... engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” [Emphasis in the original.]
It’s tempting to dismiss Scalia’s dissent as “extreme and outdated,” as Los Angeles Times reporter David Savage has written. But if the conservative takeover of the Supreme Court has taught us anything, it is that the high court’s precedent decisions are considered fair game for reversal by the hard-right justices who dominate the court today. (Take a look at the court’s recent decisions on abortion and the Second Amendment.)
Of the five-member majority that scuttled much of Arizona’s Papers Please law, Kennedy, Ginsburg, and Breyer are no longer on the bench. Though Scalia is also gone, the court’s three Trump appointees—Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—are all Scalia protegees. If and when Texas’ SB 4 comes back to the Supreme Court, it will not be surprising if they join with Thomas and Alito to resurrect Scalia’ ghost and validate Gov. Abbott’s war on immigrants.
With the November elections looming and border security a key issue, the war’s pace is certain to accelerate.
