Understanding the Constitution: How States May Respond to Illegal Immigration—Part IV

This Part IV examines a particularly thorny problem: To what extent may the federal government interfere when states exercise their defensive war powers?

Illegal immigrants wait to climb over concertina wire after they crossed the Rio Grande and entered the United States from Mexico, in Eagle Pass, Texas, on Sept. 23, 2023. Eric Gay/AP Photo

Commentary

Part I of this series showed that the unauthorized mass migration into states at the Southern border qualifies as an “invasion” as the Constitution uses the term. That part also pointed to a constitutional canard—the false claim that federal power over war, immigration, and foreign commerce is “exclusive” and that the states have no authority over those subjects whatsoever.

But as Part II and Part III demonstrated, the Constitution explicitly recognizes state authority to wage defensive war when invaded. This Part IV examines a particularly thorny problem: To what extent may the federal government interfere when states exercise their defensive war powers?

The issue comes up this way: First, a state makes a decision traditionally associated with defensive war. It may erect barriers, restrict foreign goods, control immigration, or hold prisoners. Then the federal government or private parties sue the state, claiming that these subjects are “preempted” by federal law and that the state may do nothing. Federal preemption arguments have had more success than the Constitution justifies.

The Idea of Federal Preemption

The Constitution grants the federal government certain enumerated (listed) powers. When the federal government constitutionally exercises one of these powers, its decision is “the supreme Law of the Land.” In such a case, federal law “preempts” (overrides) state law. On the other hand, if the federal government acts outside its enumerated powers, the action has no legal effect, and state law remains controlling.

Consider the efforts of Texas authorities to place barriers against migrants trying to cross the Rio Grande River. As noted in Part III, barrier placement is perfectly consistent with defensive war. On the other hand, control of navigable rivers has always been recognized as a federal prerogative under the Constitution’s Commerce Clause (Article I, Section 8, Clause 3). Because federal regulations of foreign and interstate commerce trump state regulations, two courts have upheld federal objections to Texas putting barriers in the river. Presumably, Texas could erect them away from the riverbank.

A state conducting a defensive war may also wish to restrict foreign commerce (through trade restrictions) and limit migration into the state. The Constitution left the states with that authority. For one thing, the delegates to the 1787 Constitutional Convention explicitly decided that the states should retain the power to impose trade restrictions. For another, the Constitution (Article I, Section 9, Clause 1) explicitly recognizes state authority over both voluntary migration and foreign commerce (in this case, referencing a particularly despicable form of foreign commerce—the slave trade).

If Congress acts to regulate foreign commerce or immigration (Article I, Section 8, Clause 10), congressional law preempts inconsistent state measures. On the other hand, if Congress hasn’t acted—or if a state law regulating foreign commerce or immigration is broadly consistent with federal policy—the state law should be valid.

Yet, as shown in Part I, courts sometimes void state laws on immigration as “preempted”—even when those state laws are broadly consistent with federal policy. In my view, this is a gross overextension of the federal preemption doctrine. It seems to be based on the false notion that states have no authority over immigration at all and that federal power is “exclusive.”

When cases like these come before the federal courts, state lawyers must vigorously demonstrate that the “exclusivity” claim is flatly wrong. The evidence—including the Constitution’s actual wording—is quite clear on this point: States may regulate immigration in ways broadly consistent with federal law. They also may regulate immigration when the federal government has not. Once the courts see that the exclusivity claim is wrong, they should allow states more latitude. 

Where States Should Be Supreme

Some defensive state war powers shouldn’t be subject to federal preemption at all.

During the debates over the Constitution, the document’s advocates strongly emphasized that states would have the right to defend themselves. For example, they affirmed that states would, except in specified circumstances, control their own armed forces. They also represented that states could suspend the writ of habeas corpus, thereby enabling them to hold prisoners of war without trial.

A modern argument against this is the following: The Constitution gives the federal government not only powers listed in the document but also vast “necessary and proper” (incidental) powers. The federal government can use these to override state efforts at self-defense.

This argument is a threat because, as I explained in my Epoch Times series “How the Supreme Court Rewrote the Constitution,” during the 20th century the Supreme Court stretched the central government’s incidental powers beyond recognition. As a result, the feds can claim that they aren’t limited to blocking Texas from erecting barriers in a navigable river. They may assert that they also can prevent state barriers on dry land because of federal incidental power over dry land.

Fortunately, the Supreme Court is aware of the distortions caused by its expansion of federal powers and sometimes tries to remedy them. Here’s an approach state lawyers might try:

In 1997, the Supreme Court decided Printz v. United States. In that case, the court considered the federal “Brady Handgun Violence Prevention Act,” which ordered local sheriffs (who legally are state officials) to perform background checks on people seeking to purchase firearms. The federal government argued that the Brady Act was within Congress’s greatly expanded federal Commerce Power because it was “necessary and proper” to regulating commerce.

Yet the court ruled that even if this part of the Brady Act was “necessary” (incidental), it wasn’t “proper.” The court stated that a federal law couldn’t be “proper” if it “[violated] the principle of state sovereignty” by dictating to a state the duties of its own officials.

A state’s power of self-defense is even more central to its sovereignty than full control over its own officials. That power of self-defense shouldn’t be subject to the whim of federal officials. Otherwise, those officials could (like the Biden administration) refuse to protect a disfavored state from invasion and then prohibit the state from defending itself as well.

Not even the modern Supreme Court would permit that.

The final installment in this series will examine two related questions: What do our findings reveal about “birthright citizenship”? And what do they reveal about who is a “natural born citizen”?

Robert G. Natelson, a former constitutional law professor who is senior fellow in constitutional jurisprudence at the Independence Institute in Denver, authored “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2015). This series is based on his forthcoming research article co-authored with Andrew T. Hyman: “The Constitution, Invasion, Immigration, and the War Powers of States.” It will appear early this year in Volume 13, Issue 1, of the British Journal of American Legal Studies.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.