Biden Takes Texas To SCOTUS Over Border Dispute

P. Gardner Goldsmith | January 16, 2024
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The increasing heat between state governments and the feds may be reaching a virtual boiling point, as the Biden Department of Homeland Security (DHS) Friday added a supplemental filing to the Administration’s days-old request for the Supreme Court of the United States (SCOTUS) to “reinstate” federal control over the southern Texas border with Mexico.

Thomas Stevenson writes for the Post Millennial:

“Filed on Friday, the document states that the DHS is filing the motion because of ‘new activities by the Texas National Guard and Department of Public Safety.’"

In part, those “new activities” include Governor Abbott’s use of the Texas National Guard and State Police to reinforce barriers to entry from the south.

“The supplemental memorandum states that the DHS had learned on Jan. 10 that ‘National Guard members had begun erecting new concertina wire barriers.’ Since the new border wire is further ‘inland’ and ‘restricts Border Patrol’s ability to reach the [Rio Grande] in particular areas’ the DHS is pursuing a legal battle.”

But some very important, very fundamental, questions arise when reading or hearing terms such as “Border Patrol” and “DHS.”

Those are heavy and powerful constitutional questions that, likely, the Supreme Court majority – however it is composed when the Justices make a decision – will not address.

As I have discussed with students and here at MRCTV, it is absolutely essential that Americans understand that the word “immigration” is not in the US Constitution, and that any federal politician or bureaucrat who claims power to control the Texas border, or even to get access to its southern border, is breaching the rules in that founding document.

Related: Biden Border Patrol To Work Like Travel Agents INSIDE Mexico??

Many Americans conflate the power in Article One, Section Eight, granting the Congress ability to create a rule of naturalization, with the power to create a rule over immigration. Naturalization is, of course, how visitors become American citizens, not whether visitors can be on the soil of any U.S. state.

The only passage of the Constitution from which one might infer a link to immigration is in Article One, Section Nine, which reads, in part,

“The Migration of 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 the Year one-thousand-eight-hundred-and-eight…”

This provision tells readers that, prior to 1808, Congress could not write laws regarding migration of "certain people" into any of the original 13 states from outside the U.S., or from other states in the union. The wording pertained to slave importation, and meant that, unless the Constitution were amended, Congress did not have jurisdiction over importation of slaves in the original states until after 1808, and that it had no power to control the importation of slaves into any new state. 

This was reflected in policy shortly thereafter, as the Constitution when the Missouri Compromise was achieved. The Compromise codified the process for admission of states from the territories of the Louisiana Purchase. The new northern “free states” and new southern “slave states” would alternate admission, keeping what many politicians believed would be a balance between “slave” and “free” states for representation. 

If the federal government could block importation of slaves into states beyond the original 13 (the horrible practice of slavery can be explored in a different piece), then there would be no need for the Missouri Compromise, because Congress could block the importation of slaves into those new “slave” states, making them de facto “free” states and shifting even more population-based “representative” power to the north.

The Founders understood that immigration was not a federal power. Thomas Jefferson said so himself in his 1798 Kentucky Resolution Number Four, which was a slap at the Alien Act pushed by then-President, John Adams:

“IV. Resolved, that alien friends are under the jurisdiction and protection of the laws of the state wherein they are; that no power over them has been delegated to the United States, nor prohibited to the individual states distinct from their power over citizens; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that ‘the powers not delegated to the United States by the Constitution nor prohibited by it to the states are reserved to the states respectively or to the people,’ the act of the Congress of the United States passed on the 22d day of June, 1798, entitled ‘An act concerning aliens,’ which assumes power over alien friends not delegated by the Constitution, is not law, but is altogether void and of no force.”

In fact, Texas’s state constitution, approved in 1869, included an article establishing a “Bureau of Immigration” in it. 

If the people of Texas believed Congress had the power to control immigration, why would they bother creating their own Bureau of Immigration?

The answer is that Congress did not have such an enumerated power, and the only reason contemporary Americans fight over what the feds “should do” at the border is because of a 1875 Supreme Court ruling in the case of “Chy Lung v. Freeman” which was a challenge to a California statute imposing a charge on boat-owners who were facilitating ingress to Chinese women (seen as likely prostitutes by the politicians). With the ruling, the Justices simply made up federal immigration control, saying, in part, this errant nonsense, which easily can be refuted by actually reading the Constitution:

“The passage of laws which concern the admission of citizens and subjects of foreign nations to our shores belongs to Congress, and not to the States.”

This led to federal passage of the Page Law that same year, a statute that restricted lower-price Chinese immigrant labor, and established from that point on that the states would suffer the loss of their constitutionally granted power over immigration.

At The Post Millennial, Stevenson notes:

“Calls to impeach DHS Secretary Alejandro Mayorkas, meanwhile, have not been lacking with Senator Ted Cruz (R-TX) floating the idea around a year ago. 
Official motions from Congressional House Republicans on an impeachment resolution started this past Wednesday.”

And since its Friday supplemental filing with SCOTUS, the DHS has added more fuel to the feds-vs-state fire.

Related: FLA Gov DeSantis Announces He Will Provide Police Support to TX, AZ Border Security

The Associated Press reports:

“The U.S. Homeland Security Department said Saturday that Texas denied federal agents access to a stretch of border when they were trying to rescue three migrants who drowned.

The federal government’s account came hours after U.S. Rep. Henry Cuellar (D-TX) said the Texas Military Department and Texas National Guard ‘did not grant access to Border Patrol agents to save the migrants’ Friday night. Mexican authorities recovered the bodies of a woman and two children Saturday across the border from Eagle Pass, Texas.”

But the Texas government reports something slightly different:

“The Texas Military Department said in a statement Saturday night that one of its units had searched the river after Border Patrol alerted them of the situation but did not find any migrants.”

That does necessarily contradict the federal government claim, but it does bring to mind that unavoidable question of federalism.

Left hanging is the matter of whether the US Constitution authorizes the feds to be involved, or if the matter of the lost migrants is one left to Texas during a time when no War has been declared.

Clearly, the Founders left the matter in the hands of the state and the Texas Bureau of Immigration.

One cannot expect the Supreme Court to touch on these important matters, but we can do so, and tell others. At a time such as this, helping to remind people of what the Constitution actually says could be very important.

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