Reasonable minds are going to disagree about the right way forward for U.S. immigration policy. But whatever the right answer is, letting individual states enforce their own immigration priorities, as Texas will now do under a new bill signed into law by Gov. Greg Abbott on Monday, isn’t it.
The Texas bill is almost certainly pre-empted by federal law under a 2012 Supreme Court decision. It would also set a terrible precedent, where each of the 18 states that border foreign countries (if not all 50 states) could have different consequences for immigration status. You may prefer the approach of Texas versus California’s, but allowing both states to make and enforce their own rules is a recipe for chaos — regardless of whether Democrats or Republicans control the federal executive branch.
The Texas bill is not only almost certainly pre-empted by federal law under a 2012 Supreme Court decision.
Abbott’s new law, known as “SB4,” makes it a crime under Texas state law for noncitizens to enter or re-enter the United States without authorization; allows Texas law enforcement authorities to stop, arrest, and jail those suspected of having committed that offense; and it empowers state judges to issue de facto deportation orders against those convicted of violating the new law.
The law authorizes Texas law enforcement officers to transport noncitizens to a “port of entry,” at which point it is assumed federal authorities will kick the noncitizens out of the country. If not, the bill creates a third crime for individuals who remain in the U.S. despite a state removal order. Incredibly, SB4 also purports to indemnify officials who, while enforcing the new law, violate the Constitution or other federal laws.
As the Supreme Court reiterated as recently as 2012, “The federal power to determine immigration policy is well settled,” and “[f]ederal governance of immigration and alien status is extensive and complex.” In that 2012 decision, Arizona v. United States, the court struck down parts of an Arizona law that made it a crime for undocumented immigrants to work or apply for work in the state. As Justice Anthony Kennedy explained, “[a]lthough [the Arizona law] attempts to achieve one of the same goals as federal law — the deterrence of unlawful employment — it involves a conflict in the method of enforcement.”
The court also blocked a provision of the Arizona law that authorized local and state law enforcement officers to arrest anyone who they had good reason to believe was subject to removal from the United States. The court concluded this provision essentially gave Arizona police even greater authority to “arrest aliens” than federal law enforcement. As Kennedy explained, “[t]his state authority could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case. This would allow the State to achieve its own immigration policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) who federal officials determine should not be removed.”
And although Arizona argued that its state laws were merely facilitating “cooperation” with federal immigration authorities, the court rejected that view: “There may be some ambiguity as to what constitutes cooperation under the federal law; but no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government.”
Against that backdrop, it’s easy to see how most of SB4 is also pre-empted by federal immigration law. And so long as Arizona remains good law, the basic thrust of SB4 is inconsistent with federal law, and thus pre-empted by the U.S. Constitution’s Supremacy Clause. Of course, today’s Supreme Court is not the same court that decided Arizona. Of course, today’s Supreme Court is not the same court that decided Arizona. But in addition to Kennedy and three of the Democratic appointees (Justice Elena Kagan was recused) the fifth vote for the majority opinion in that case came from Chief Justice John Roberts. Given that Texas’ approach goes even further than Arizona’s, it unlikely that five justices, even among the current group, will buck precedent in this way. And whatever one thinks about the merits or demerits of what that would mean, given the federal government’s current immigration policies, that’s the right outcome. As Justice Robert Jackson wrote for the Supreme Court in 1954, courts “cannot resolve conflicts of authority by our judgment as to the wisdom or need of either conflicting policy. The compact between the states creating the Federal Government resolves them as a matter of supremacy. However wise or needful [a state’s] policy, . . . it must give way to the contrary federal policy.” That reality is not just what the Constitution requires; it is what a functioning federal system demands. Were it otherwise, each of the 18 states that has an international border could take it upon themselves to create their own tiers of noncitizen status. Each of those states would need its own agreements with foreign countries to effectuate the removal of noncitizens violating their immigration laws. And the variances in those laws would in turn mean that companies doing business across state lines would have to distinguish among their own noncitizen employees based upon where they live and work. Even if the Constitution didn’t foreclose such chaos, any interest in a workable federal system would. There may be better solutions to current immigration problems than those being pursued by the Biden administration, but “every state for itself” just isn’t it.
Steve Vladeck
Steve Vladeck is a professor of law at Georgetown Law, whose teaching and research focus on federal jurisdiction, constitutional law and national security law. He is co-editor-in-chief of the Just Security blog (@just_security) and co-host of "The National Security Law Podcast" (@nslpodcast). 
