Last Monday, the Supreme Court made its first foray into a longstanding conflict over who is in charge of the United States-Mexico border: the United States government or Texas’s Republican Gov. Greg Abbott.
In a 5–4 decision, the Court temporarily permitted federal officials to cut razor wire barriers set up by the Texas government, which had prevented US Border Patrol agents from entering an area where immigrants sometimes cross into the United States. This decision, moreover, came in one of several disputes between Texas and the United States over border policy — with many GOP-led states now backing Abbott.
Under existing law, it is well established that the federal government is in charge of nearly all questions of immigration policy and may override state immigration policies that conflict with its goals. As the Supreme Court said in Arizona v. United States (2012), “[I]t is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States.”
But it is unclear whether the current Supreme Court, with its 6–3 Republican supermajority, will honor this longstanding balance of power between the national government and the states, which has been in place at least as far back as the Court’s 1941 decision in Hines v. Davidowitz.
Though the Court’s Monday order in Department of Homeland Security v. Texas was a victory for the Biden administration, it was also an ominous sign that many of the justices are eager to shift power away from the federal government — and toward state officials like Abbott, who are eager to impose more draconian enforcement policies.
The case involved an extraordinary attack on the federal government’s primacy over immigration. Texas erected razor wire barriers along a river in Eagle Pass, Texas, that physically prevented federal Border Patrol agents…
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