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Texas law professor says influx of migrants doesn't meet the definition of invasion

STEVE INSKEEP, HOST:

State authorities in Texas are still controlling parts of the border with Mexico. The state has been asserting a right to pursue its own immigration policy when state officials dislike what the federal government does. A clause of the U.S. Constitution does allow states to defend against invasion, but Texas has been generally losing in federal courts. So what is the law, and what does it mean? Steve Vladeck, a professor at the University of Texas, gave us the background.

STEVE VLADECK: Things really ratcheted up last year when Governor Abbott first placed a long, moveable buoy in the middle of the Rio Grande as an obstruction to try to make it harder for migrants to cross that part of the border, and then late last year, when Texas officials started placing razor wire along a roughly 29-mile stretch of the border, again, with the idea of further interfering with and disincentivizing unauthorized crossings.

And then the real flashpoint was last month, when Texas officials took over a park in Eagle Pass called Shelby Park that the federal government had been using as a staging ground for its border enforcement authorities and for its activities. And Texas basically said, no, you can't use it anymore. So it's been this sort of slow escalation of first supplementing federal authority and increasingly trying to supplant it.

INSKEEP: I guess the basic federal argument is it's the United States border, therefore it's the federal government's business, right?

VLADECK: That - I mean, that's the basic argument, and it's one that has a lot of support in, you know, decades of Supreme Court jurisprudence. I mean, for better or for worse, immigration policy is the job of the federal government, not the states. Steve, it really wouldn't make a lot of sense if Texas and New Mexico and Arizona and California could all have different policies about how to police the U.S.-Mexico border. If it comes down to a policy dispute between the states and the federal government, it's pretty clear who's supposed to win those.

INSKEEP: With all of that said, you can imagine Governor Abbott, if he were sitting here, or the Texas attorney general, saying, listen, I have authority when there's an invasion, and I'm being invaded. Is this an invasion?

VLADECK: So first, no, I mean, there's plenty of evidence from founding-era sources, from James Madison himself, that an invasion meant a, you know, armed attack by an organized party. But, you know, migrants crossing the border without authorization - that's just never been understood to meet that definition. But even if it did, even if there are folks who don't find that persuasive, the authority the Constitution grants to states in circumstances in which they are, quote, "actually invaded," unquote, is just a stopgap, basically, to allow states to defend themselves until the federal government is able to show up.

INSKEEP: What would the implications be if the Supreme Court ultimately accepted Texas's interpretation of the law?

VLADECK: Yeah. I mean, I think if the Supreme Court were to say that states can decide for themselves when they are invaded and then use that determination as a basis for refusing to abide by federal policies, then I think, Steve, overnight, we're going to see claims from other states that they're being invaded by other things - I mean, an invasion of drugs, an invasion of guns, an invasion of, you know, whatever rhetorical device is politically appropriate in that moment. And this is why this case has such important stakes. It's not just about the future of U.S. immigration policy. It's really a referendum on the relationship between states and the federal government, even in the context of national defense.

INSKEEP: Is there any serious or significant part of conservative legal thinking that wants to massively expand state power and reduce federal power in this way?

VLADECK: Yeah. I mean, I think this is really something we're seeing not just in Texas. I mean, Idaho just passed a bill that would basically allow Idaho officials to decline to enforce federal statutes that they believe are unconstitutional. Missouri has a law on the books right now that allows its officials - it actually bars its officials from assisting in the enforcement of federal gun laws. So we really are seeing efforts by states to resist federal laws that they object to to a degree we haven't seen, certainly, since the civil rights movement and perhaps even since before that.

INSKEEP: Is there any blue state or liberal or progressive version of this movement?

VLADECK: Steve, perhaps not surprisingly, we're seeing this especially in red states while there's a Democratic president. There were shades of this, you know, from blue states during the Trump administration...

INSKEEP: Yeah.

VLADECK: ...Especially when it came to immigration policy. But it's hard to believe that if Texas is able to do what it's doing now, we won't see blue states trying similar moves the next time there's a Republican president. And all that really proves is the point that we shouldn't be revisiting long-standing constitutional principles just because at this particular moment in time, it's politically expedient.

INSKEEP: Steve Vladeck, professor at the University of Texas at Austin's Law School. Thanks so much.

VLADECK: Thank you.

(SOUNDBITE OF SKULI SVERRISSON ET AL.'S "LE FEU") Transcript provided by NPR, Copyright NPR.

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