The Supreme Court handed down a brief order on Tuesday allowing an unconstitutional Texas state immigration law to go into effect. The case is known as United States v. Texas.
Though this order is temporary, the result is shocking. Texas’s law, which allows state officials to arrest migrants and state courts to order them deported to Mexico, violates 150 years of settled law establishing that the federal government, and not the states, gets to decide which foreign nationals may enter or remain in the United States.
The full Court did not explain itself, but Justice Amy Coney Barrett wrote a brief explanation, joined by Justice Brett Kavanaugh, of why she voted to allow the Texas law to take effect. Her opinion provides a road map to lower court judges hoping to shield their decisions from Supreme Court review. Indeed, Barrett’s concurring opinion is such a clear invitation to rogue judges who wish to game the judicial system that it is difficult to believe that she agrees with it.
All three of the Court’s Democratic appointees dissented.
Texas’s law is unconstitutional under extraordinarily well-settled law
There is no plausible defense of Texas’s deportation law under existing Supreme Court precedents. The Court has held consistently, over at least a century and a half, that “the authority to control immigration — to admit or exclude aliens — is vested solely in the Federal Government.”
This principle, that the federal government has virtually exclusive authority over immigration policy, stretches back at least as far as the Court’s decision in Chy Lung v. Freeman (1875), which held that “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.”
The reason why this principle exists is to prevent a single state’s mistreatment of a foreign national from harming US relations with another country. As the Court warned in Hines v. Davidowitz…
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