If the federal government refuses to secure the border, can the states do it? 

Texas recently enacted Senate Bill 4 (S.B. 4), which, among other things, makes it a Class B misdemeanor for a migrant to enter or attempt to enter Texas directly from a foreign nation at any location other than a lawful port of entry, punishable by up to one year in jail, a fine of up to $4,000, or both jail time and a fine. Subsequent offenses are state jail felonies. 

If it is a first offense, a judge may, at any time after the person’s appearance before a magistrate, dismiss the charges pending against the migrant if he/she agrees to the issuance of an order requiring a return to the country from which the migrant made the illegal entry. Refusal to comply with such an order is a state jail felony. 

If the proceedings go to a conclusion and an offense is found, the judge will impose a jail sentence and/or a fine, and issue a removal order.  

Texas Gov. Greg Abbott says that S.B. 4 is necessary because the Biden administration has willfully refused to enforce our nation’s immigration laws and is systematically dismantling every effective border security policy that previously led to the lowest number of illegal border crossings in decades.  

In a letter to Abbott dated Dec. 28, 2023, the administration says it will file a suit to enjoin the enforcement of S.B. 4 unless Texas agrees to refrain from enforcing it. According to the administration, S.B. 4 is preempted because Congress has established a comprehensive scheme governing the entry and removal of noncitizens, including penalties for unlawful entries.  

Does preemption apply when the administration has willfully refused to enforce the scheme Congress established? 

A migrant subject to S.B. 4 proceedings has the right to counsel and an interpreter. The proceedings do not prohibit him or her from applying for asylum, but a pending asylum application is not an affirmative defense to prosecution.  

S.B. 4, however, does provide these affirmative defenses: 

1. The federal government has granted the defendant asylum or lawful status; 

2. The defendant’s conduct does not constitute a violation of federal law related to improper entry by an alien; or 

3. The defendant was approved for benefits under the DACA program between June 15, 2012, and July 16, 2021.  

Abbott began testing the legal limits of what a state can do to enforce immigration law in March 2021, when he launched Operation Lone Star. The operation has led to more than 484,100 undocumented immigrant apprehensions and the seizure of more than over 435 million lethal doses of fentanyl.  

In addition, Texas has enacted laws that provide immigration enforcement measures such as checking whether foreign employees have employment authorization, prohibiting undocumented immigrants from getting a driver’s license, and imposing restrictions on a number of state benefits. 

The administration’s argument. The U.S. Constitution has a supremacy clause, which provides that federal law is “the supreme Law of the Land” notwithstanding any state law to the contrary. This is the basis for the doctrine of federal preemption. 

In Arizona v. United States, the Supreme Court held that “the removal process” has been “entrusted to the discretion of the Federal Government” because a “decision on removability” touches “on foreign relations and must be made with one voice.” 

Also, Congress has established a comprehensive scheme governing the entry of migrants. The separate state scheme that S.B. 4 establishes intrudes into this enforcement field, which is fully occupied by the federal government and therefore is preempted.  

Justice Antonin Scalia entered a dissenting opinion in Arizona v. United States in which he asserts that the majority’s decision deprives states of the power to exclude people from its sovereign territory who have no right to be there — a defining characteristic of sovereignty. Neither the Constitution itself nor any law passed by Congress supports this result. 

The presumption against preemption. The Supreme Court established a presumption against preemption, dictating that federal law should not be read to preempt laws involving the states’ general power of governing “unless that was the clear and manifest purpose of Congress.” Congress presumably expected the president to enforce its comprehensive scheme governing the entry and removal of migrants.  

The Constitution has a "take care" clause that specifies the president “shall take Care that the Laws be faithfully executed.” The administration’s failure to execute the laws Congress established on the entry and removal of migrants in and of itself is defeating the congressional purpose. 

This isn’t just a problem for Texas. The record-breaking number of illegal crossings has strained federal and local resources in communities across the country.  

Abbott sent letters to America's Governors in May 2023, asking them for help to combat the administration’s ongoing border crisis. Fourteen states agreed to supported Texas's efforts by deploying personnel and resources to the border. 

Partnership: State governments have been partners in federal immigration policy since passage of the 1980 Refugee Act, which created a national program to provide services such as English language and job training to help refugees become self-sufficient. 

Since then, states have enacted legislation to address a wide range of policy areas in an attempt to weaken the magnets that attract illegal border crossers. For instance, many states are trying to weaken the job magnet with laws that mandate using E-Verify to determine whether foreign workers are authorized to work in the United States. Although this is a federal program, it isn’t currently mandatory.  

Will the current Supreme Court with its six conservative and three liberal justices find that S.B. 4 is preempted, or will it agree with Abbott that states should be permitted to establish border security measures if the administration has refused to execute the border security measures established by Congress? 

I expect the Supreme Court to reject the administration’s preemption argument. If it doesn’t, the tsunami of illegal border crossings will continue — at least, until there is a president in the White House who will take care that the laws be faithfully executed. 

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at: https://nolanrappaport.blogspot.com.