The Civil and Military Power of a State to Resist Unlawful Immigration
Andrew Hyman
There's much news this week about an impending increase in the already-unprecedented level of unlawful immigration, as pandemic-era policies are relaxed by the Biden administration. The state of Texas is a border state, and The Hill reported on May 8 about action by the Texas governor: Abbott deploying 'tactical border force' as Title 42 nears end. Governor Abbott already declared an "invasion" in November, "and moved to invoke invasion clauses of the U.S. and Texas constitutions to allow him to boost security at the border." Certainly many of the undocumented immigrants are simply seeking better lives for themselves and their loved ones, but there are also advantages to enforcing laws, having borders, avoiding chaos, and providing sufficient foreign aid to uplift other countries.
There are two ways that Texas and other border states can potentially try to curtail illegal immigration, and those two ways are civil and military. The influx appears to be too daunting and formidable for the Biden administration to adequately address (assuming they want to address it) without separate action by the border states, either civil or military, or both. Interesting legal questions arise about the extent of a state's authority on both the civil and military sides.
On the civil side, the ability of states to reduce illegal immigration greatly shrank in the case of Arizona v. United States (2012). Writing at National Review last month, Jim Geraghty called that SCOTUS opinion a "legal buzzsaw" and I agree with those who say that 5-3 decision was wrongly decided. The Texas attorney general is suggesting it's time to test that precedent. The correctness of that Arizona case hinges partly on whether it relied upon the correct clause of the Constitution, and I strongly suspect it did not. Justice Kennedy wrote for the Court:
On the civil side, the ability of states to reduce illegal immigration greatly shrank in the case of Arizona v. United States (2012). Writing at National Review last month, Jim Geraghty called that SCOTUS opinion a "legal buzzsaw" and I agree with those who say that 5-3 decision was wrongly decided. The Texas attorney general is suggesting it's time to test that precedent. The correctness of that Arizona case hinges partly on whether it relied upon the correct clause of the Constitution, and I strongly suspect it did not. Justice Kennedy wrote for the Court:
The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens....This authority rests, in part, on the National Government’s constitutional power to "establish an uniform Rule of Naturalization," U. S. Const., Art. I, §8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations....
If the Naturalization Clause really were the main clause to deal with illegal immigration, then its requirement of a "uniform rule" would certainly seem to argue against concurrent state power, and for a uniform national policy. But naturalization is all about giving the rights of citizenship to foreigners, not about whether people who have no path to naturalization may set foot in the United States, or whether those people can remain in the United States indefinitely with a status other than citizenship. The Constitution gives Congress power over illegal immigration because of another clause that has no "uniform rule" requirement, and that clause is the Define and Punish Clause, which gives Congress power to "define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations." In his treatise The Law of Nations that was constantly in the hands of the framers, Vattel wrote,
[T]he sovereign may forbid the entrance of his territory either to foreigners in general or in particular cases, or to certain persons or for certain particular purposes, according as he may think it advantageous to the state. There is nothing in all this that does not flow from the rights of domain and sovereignty: every one is obliged to pay respect to the prohibition; and whoever dares to violate it, incurs the penalty decreed to render it effectual.
Yes, federal laws must be controlling on this subject, but state laws that are consistent with those federal laws should not be considered as pre-empted. Blackstone wrote: "by the law of nations no member of one society has a right to intrude into another ... [I]t is left in the power of all states, to take such measures about the admission of strangers, as they deem convenient." Mistaken reliance upon the Naturalization Clause, and its attendant requirement of national uniformity, has sidelined the Define and Punish Clause, and shut out the states (especially the border states) from a meaningful role in using their ordinary civil justice system to reduce illegal immigration. That's the main problem, in my view, that is hamstringing state civil power.
Regarding states' military power to resist illegal immigration, the Constitution says, "No State shall, without the Consent of Congress ... engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." States are thus entitled to use military power and personnel in self-defense. A key question is what constitutes an "invasion." No modifiers are used in the Constitution, such as "invaded by armed forces of a foreign government." It would certainly be odd if the forces of a foreign government could simply leave their weapons at home, and thereby deprive a U.S. state of power to resist their incursion. In Federalist 43, Madison made clear that foreign governments need not be involved: "A protection against invasion is due from every society to the parts composing it. The latitude of the expression used here seems to secure each state, not only against foreign hostility, but against ambitious or vindictive enterprises of its more powerful neighbors...." The Constitution's lack of modifiers on the words "invader" and "invasion" signify a deliberate latitude of expression. It is unfortunate that the civil power of the states has been so constricted by judicial error that we have to discuss the military power now as well, and the civil power alone might be sufficient were it not for cases like Arizona v. United States.
Regarding states' military power to resist illegal immigration, the Constitution says, "No State shall, without the Consent of Congress ... engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." States are thus entitled to use military power and personnel in self-defense. A key question is what constitutes an "invasion." No modifiers are used in the Constitution, such as "invaded by armed forces of a foreign government." It would certainly be odd if the forces of a foreign government could simply leave their weapons at home, and thereby deprive a U.S. state of power to resist their incursion. In Federalist 43, Madison made clear that foreign governments need not be involved: "A protection against invasion is due from every society to the parts composing it. The latitude of the expression used here seems to secure each state, not only against foreign hostility, but against ambitious or vindictive enterprises of its more powerful neighbors...." The Constitution's lack of modifiers on the words "invader" and "invasion" signify a deliberate latitude of expression. It is unfortunate that the civil power of the states has been so constricted by judicial error that we have to discuss the military power now as well, and the civil power alone might be sufficient were it not for cases like Arizona v. United States.
MICHAEL RAMSEY adds: Rob Natelson is the leading academic proponent of the view that the define and punish clause gives the federal government power over immigration -- see especially this article: The Power to Restrict Immigration and the Original Meaning of the Constitution’s Define and Punish Clause. I am becoming persuaded by this view.
DAVID WEISBERG adds: For obvious reasons, we all hesitate to focus on the provisions of the Constitution which dealt, in a euphemistic, circumlocutory manner, with slavery. Nevertheless, I think it is worth noting that Article I, Section 9, Clause 1 states: “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to [1808.]” This text clearly implies that the identity of the persons or classes of persons who may properly migrate is, at least to some degree, determined by those who “the States … shall think proper to admit[.]” Thus, the text certainly bolsters Andrew Hyman’s contention that Arizona v. United States is “hamstringing state civil power.”