Rep. Chip Roy (R-Texas) compared the recent Supreme Court decision permitting federal officials to cut razor-wire fencing on the Texas border with Mexico to the court’s infamous decision that upheld slavery and helped precipitate the Civil War.
The comment by Mr. Roy, who has also urged his home state to ignore the court’s order, came at a Jan. 30 meeting of the House Judiciary Committee’s subcommittee on the Constitution and Limited Government about the current crisis at the border. He is chairman of the subcommittee.
Texas officials say they will continue installing wire fencing at Eagle Pass. The Biden administration has complained that state officials are not allowing border patrol officers full access to Shelby Park, a city-owned park in Eagle Pass. Some observers say the federal-state standoff is a constitutional crisis in the making.
After Mr. Roy asked witnesses if governors were free to defend state borders, ACLU official Omar Jadwat said, “150 years of Supreme Court precedent says that states do not have the authority to take immigration matters into their own hands.”
Mr. Roy then asked, “Was Dred Scott a good decision that we should follow?”
“We’re not talking about Dred Scott here,” the witness replied. “No government has the authority to override that Supreme Court precedent.”
In Dred Scott v. Sandford (1857), the court ruled that blacks were not and could never become U.S. citizens, a decision that greatly contributed to sectional tensions in the lead-up to the Civil War. A bust of the opinion’s author, Chief Justice Roger Taney, who died in 1864, was removed from the U.S. Capitol a year ago.
During the hearing, Mr. Roy said there had been more than 7 million illegal immigrant encounters at the nation’s southern border so far during the Biden administration, compared to 2.4 million encounters during the Trump administration.
Under President Joe Biden, “over 5 million aliens have been released into the United States, which includes more than 1.8 million known ‘gotaways.’” The system is so overburdened that some migrants who have been released in the United States are receiving notices requiring them to appear before immigration authorities as late as 2035, he said.
Different Perspectives
Some Republicans have argued that if the Biden administration refuses to protect states from invasion, the Constitution recognizes that states have a right to defend themselves.Rep. Mary Gay Scanlon (D-Pa.), the senior Democrat on the subcommittee, pushed back against Republican assertions that states can involve themselves in immigration enforcement.
“The extent to which states can act independently of the federal government with respect to immigration matters, including border enforcement, has been well-settled law for over 150 years,” Ms. Scanlon said.
She said the Supreme Court has made it clear that the Constitution does not allow states to reject federal immigration policy and implement their own immigration enforcement systems. When a state does so, “it unlawfully violates the principle that the removal process is entrusted to the discretion of the federal government.”
The subcommittee hearing is taking place “to try to breathe life into a crackpot legal theory that is so extreme that even hardcore conservative scholars have rejected it, declaring correctly that this is an attempt to subvert our constitutional order for political purposes.”
The current “migration crisis does not equal an invasion,” she said, adding that Republicans are using “racist dog whistles” in a “torturous attempt to evade the clear constitutional order.”
Former Arizona Attorney General Mark Brnovich (R) said at the hearing that the evidence that the “violence and lawlessness” at the southern border has been caused by cartels and gangs “is extensive, well-documented, and persistent.”
This disorder satisfies the definition of invasion in the Constitution, he said. The state self-defense clause “exists precisely for situations such as the one present.”
“Always remember the states created the federal government, not the other way around. When the federal government refuses or neglects to protect its citizens, the states have an obligation and the ability to do so.”
Witness Christopher Hajec, litigation director at the Immigration Reform Law Institute, argued that since the Biden administration is “attempting to accomplish the opposite of the purpose of federal immigration law,” states can fill the void by enforcing federal law.
Rep. Jerry Nadler (D-N.Y.), who said the hearing was “a distraction by extreme MAGA Republicans,” told Mr. Hajec there was a federal court ruling that held states cannot take action unless a military force is invading.
“Courts that have said that, in my belief, are wrong,” Mr. Hajec answered.
