Courting catastrophe
In a procedural ruling yesterday, the U.S. Supreme Court dynamited more than a century of practice by letting Texas move forward with a law that effectively gives it immigration enforcement power, handing extremist Gov. Greg Abbott a victory that could have massive reverberations. In this instance, conservatives can’t rely on either the argument that the precedents are too old or too recent to wave away their validity, because the clear-cut case law is both long-standing and recently reaffirmed.
In the 1889 decision in Chae Chan Ping vs. United States, the Supreme Court ruled that the power to regulate and enforce immigration is “an incident of sovereignty belonging to the government of the United States as part of those sovereign powers delegated by the Constitution.”
Four years later the court wrote in Fong Yue Ting vs. United States that “the power to exclude or to expel aliens, being a power affecting international relations, is vested in the political departments of the Government, and is to be regulated by treaty or by act of Congress, and to be executed by the executive authority according to the regulations so established.”
About a quarter century after that, in 1915’s Truax vs. Raich, the court wrote that “the authority to control immigration — to admit or exclude aliens — is vested solely in the Federal government.”
A few decades after that, in 1948’s Takahashi vs. Fish & Game Commission, the court wrote that “The Federal Government has broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization ... Under the Constitution, the states are granted no such powers.”
See a pattern?
In our own century, in 2012’s Arizona vs. United States, the court struck down Arizona’s law that among other things created a very similar state criminal power for local law enforcement to arrest suspected federal immigration violators.
Referencing that provision, the court wrote that “by authorizing state and local officers to make warrantless arrests of certain aliens suspected of being removable, [state law] too creates an obstacle to federal law. As a general rule, it is not a crime for a removable alien to remain in the United States. The federal scheme instructs when it is appropriate to arrest an alien during the removal process ... [state law] attempts to provide state officers with even greater arrest authority, which they could exercise with no instruction from the Federal Government. This is not the system Congress created.”
That is more than 130 years of unambiguous and periodically reiterated precedent thrown out the window for what are obviously nakedly political reasons. It doesn’t matter that this is letting the law go into effect while litigation continues and isn’t a final ruling on the merits. Would it allow an unconstitutional gun restriction to stand as things got litigated?
The impact is the same: completely upending the balance of power between the states and the federal government, in a way that could easily blow beyond immigration.
What federal preemption is on the chopping block now? Will states get to conduct their own diplomacy, declare their own wars? A Supreme Court untethered from all precedent and practice is one that could do lasting damage.