Table of Contents
The 1/31 Insider Podcast from cafe.com discussing the right of the State of Texas to exclude U.S. Border patrol agents from access to the border and to obtain an injunction against the United States from interfering with the concertina wire and other property used by Texas to interdict migrants summoned more of the Macy's parade of horrors than time permitted Joyce Vance and Prett Bharara to highlight.
I began to think of one float of the parade—a metastatic burst into justifying the Texan position on the basis that states are not precluding from repelling invasions by non-state actors because that is not waging war as understood either by history and tradition or by current law. As I started to lay out that line of argument, I found something that scared the hell out of me.
Respect for the rule of law can't arise out of the rule of law by itself.
In the absence of controlling precedent that this Court is willing to respect, arguments such as I make below adequately provide cover for partisan motivation. Only a common understanding that the entire rule of law rests upon a foundation the faith that the Constitution and the great war fought over the indissoluble nature of the union resolves arguments on competing claims so as not to weaken national cohesiveness.
Here's how I got there. Even a corporate lawyer like myself can imagine the following argument without having access to a law library. The Texas position is actually colorable, especially in the eyes of a potential majority of the U.S. Supreme Court. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh said they would have denied the request by the United States to stay an injunction by the trial court that would prohibit the United States from interfering with Texas border fortifications. When and if the case returns after trial either Justice Amy Barrett or Chief Justice Roberts could constitute a majority that might buy an argument such as the one I make below.
Without a presumption of the rights of the People as an indivisible national sovereign over the rights of a single state, a majority of this Court find the opposite and permit concurrent jurisdiction over border crossings outside of ports of entry.
From a law school style hypo
Assume that the Supreme Court reverses the Fifth Circuit decision upholding an injunction against the United States from violating the property rights of the State of Texas on basis that the doctrine of sovereign immunity limits tort claims to those encompassed within the Tort Claims Act.Discuss an argument based on similar facts that the Tenth Amendment of the Constitution permits a state, in the ordinary exercise of its police powers to enforce its domestic law free of federal interference without reliance on theories of tort. Use the form of oral argument.
Argument for the Appellee
Mr. Paxton: May it please the court. The Constitution does not expressly confer the power to deny entry to aliens to the federal government. It is not a necessarily implied power to providing for uniform rules of naturalization.
The Supremacy Clause does not provide grounds to expand the powers of the federal government beyond those expressly granted or necessarily implied.
Border crossings by migrants and criminals cannot be brought under the Dormant Commerce Clause Doctrine.
United States does not dispute that the State of Texas possesses enjoys ordinary police powers. Nor does it argue that those powers diminish along a gradient approaching the border to somehow vanish.
The exercise of the police power at issue is subject to only minimum rationality scrutiny. Alternative lines of argument support upholding the exercise of police powers under these facts and that standard. Nor is the means by which Texas exercises its power open to criticism on the grounds of an impermissible application to protected classes. This court should reject the relief sought by the United States.
Rights not expressly granted to the federal government by the Constitution are reserved to the several states. The Constitution's express grant of power to the federal government in matters of immigration is limited to questions of naturalization, the regulation of commerce with foreign nations and the power to admit persons in its discretion until 1808 (to continue the slave trade implicitly). Only the last addresses the admission of aliens to a state and, by negative implication, does not apply to the exclusion of aliens.
Furthermore the power to provide for a uniform rule of naturalization does not encompass the question of immigration. Otherwise the concurrently adopted language in the 1808 Clause would not have specified "migration or importation." As a result, although the original 13 States no longer have the power to admit, that does not imply that matters of exclusion are reserved to the national government.
The Supremacy Clause can only augment enumerated powers by necessary implication. The standard of review examines the rational nexus between a purported implied power and an enumerated power. Encompassing the power to exclude from the power to admit has no such basis. The exercise of its police powers by Texas to exclude persons at the border can only, at the broadest, be construed to have any nexus in the singular case of border property that is public property of the United States.
This Court has never applied the Dormant Commerce Clause to state action that does not touch on question of interstate commerce. The purpose of the Commerce Clause is to facilitate commerce between and among the several states is to facilitate commercial exchanges. The commercial activities that are involved in the activities of the State of Texas are limited solely to drug smuggling and human trafficking. Those are not the activities that the law is set up to further.
Jackson, J.: How do you distinguish Chy Lung v. Freeman?
Mr. Paxton: That case arose following application for writ of habeas corpus on behalf of 21 subjects of the Emperor of China who had been detained on arrival by a commercial vessel by an official of the State of California. The official demanded that the ship master of the vessel on which the passengers arrived post bond on the basis that those passengers were classifiable as a "lewd and debauched woman." The demand was refused, the master detained the passengers but discharged them to the custody of the Sheriff of San Francisco upon its scheduled departure. It was ordered that on the date appointed for the future departure of the vessel on its return trip to the port that the passengers be embarked for passage back to their country of origin. The Chief Justice granted writ of habeas corpus on behalf of only 20 of the passengers. The plaintiff remained under custody of the sheriff for reasons not clear in the opinion.
The facts of her case, accordingly, confine the scope of the opinion. The state defendants did not brief or argue the case, and the US Attorney General appeared in person to argue on the behalf of the United States.The court noted that a claim by a foreign power arising from such acts would only lie against the United States because California, as a state, was prohibited from dealings as between sovereign nations. The court also noted the cupidity of the official charged with demanding the surety and ancillary charges who was permitted to retain a portion as his personal property.
The court further noted that as to the owner of the vessel similar cases had established that the effect of a statute was sufficient to decide the related constitutional questions. However, the grounds on which the Court ruled were specifically limited to passengers who were not exempt by terms of the California statute as authorized representatives of foreign governments.
The Court hypothesized that it was within California's power to refuse surety offered by individual passengers and demand it solely from the ship owners. A public official's attempt to extort the owners would plainly be offensive to the affected sovereign and adverse effects on diplomatic relations would naturally arise.
Moreover, the opinion asserted without discussion that the power to regulate admission is held solely by Congress. However, it then immediately continued to find that the federal government's power to regulate commerce and the deleterious effects arising from the effects on foreign relations of conflicting decisions at state and federal levels preempted conflicting state law.
Finally, it went on to disclaim any holding concerning the exercise of state police power, only noted that it must be closely circumscribed. That standard of review as to instrumentalities of the states, such as local municipalities was later made much more deferential in cases such as Euclid v. Ambler dealing with local land use regulation.
To continue my argument, as the cumulative result of these considerations, the exercise of the police power inherent in the sovereignty of every state does not diminish with proximity to the border of Texas with Mexico any more than it does with the border with New Mexico. In fact, like the power of the federal government at the border, it is at its zenith. Its actions are subject not merely to the ordinary minimum rationality standard of review, they are deserving of the highest degree of deference as regards the standard of reasonableness for purposes of the Fourth Amendment and the limited scope of Due Process rights.
That limited scope is of course subject to the Equal Protection Clause. However, so long as process is uniform as applied to all persons and not applied solely to members of protected classes, the Court should find, as it has in the past that the process due at the border may differ from that required generally. And …
Kagan, J.: By this reasoning, then, is it your position that by parity of reasoning the State of Texas enjoys the right to repel foreign invasion?
Mr. Paxton: No, not at all Justice Kagan. In the first place that is not the case or controversy before the Court. Moreover, the police actions by Texas are not aimed at any nation-state. To the extent that persons crossing the border at locations not authorized by the Attorney General might be considered non-state belligerents, history and tradition recognizes the right of any state to take all appropriate measures to preserve the peace. Consider the case in which a flood of residents leaving the territory of a Native American tribal territory provides concealment for a person or persons intending to violate one or more laws of the State of Texas or federal laws that the State of Texas was authorized to enforce. No one can suppose that a state would be precluded from detaining residents for questioning based on reasonable articulable suspicion that the would-be criminals sheltering among them were somehow non-state belligerents subject to the protection of the laws of war applicable to sovereign nations on either side of the encounter.
By the same reasoning, common criminals using crowds of migrants as cover cannot be classed as non-state belligerents, all the more so since no state of war subsists between the United States and Mexico. Under the facts presented in this case no speculation as to the hypothetical is necessary to limit the Court's holding on the grounds that we argue.
Texas has a reasonable basis to believe, and does believe, that among those attempting to cross the border outside of points of entry are drug smugglers and human traffickers or their victims. Texas need only establish a reasonable articulable suspicion to conduct interviews to identify to which category a person belong. This should be no more controversial than agricultural inspection stations maintained by other states, such as California. To screen the criminals from the others cannot be done on sight. It requires an orderly, consistent arrangement that cannot be conducted out of doors at scattered locations impossible to be identified in advance and at which no federal presence exists for reception of those screened who present no evidence of criminal intent. The State of Texas has neither the resources nor the obligation to shelter those persons until such time as federal officials are prepared to assume custody in an indefinite future.
Accordingly erecting barriers to such irregular entries serves a compelling state interest, even beyond satisfying minimum rationality scrutiny.
The argument that the exercise of the state's ordinary police power interferes with or obstructs the concurrent jurisdiction of the United States cannot seriously be entertained. To the contrary, the express intent of Congress is not to promote crossing of the border between points of entry. It is in fact the opposite. Only in the limited case of seeking asylum is anyone crossing at locations not designated by the Attorney General exempt from summary deportation.
In contrast to the authority of Texas to prevent entry there is no controversy whatsoever that the State manifestly lacks the authority to receive, much less entertain, requests for asylum.
History and tradition support concurrent jurisdiction of the United States and Texas to take measures closing the entry even at official ports of entry. During the course of the long Mexican Revolution, Mexican nationals fled en masse an imminent attack by federales on the town of Piedras Negras immediately across the border to Eagle Pass, Texas. On October 6, 1913 almost the entire population of Piedras Negras was awaiting reception at the port of entry when the County Commissioners declared a quarantine and refused to allow those seeking shelter in the United States entry within the immediately adjacent city limits. The federal immigration officials requested that the locality lift the prohibition and were refused. Federal authorities then proceeded to provide temporary accommodations outside of city limits. Denying the same deference to the State of Texas as has previously been extended to one of its municipalities is inconsistent with way in which national border power has been shared in the past.
The United States has made no showing that the State of Texas lacks the constitutional authority to enforce its domestic law, that the force and effect of those laws are in any way vitiated in the vicinity of the international border, that Texas has not articulated a reasonable suspicion that criminals may be included among those seeking entry in this irregular way. Any questions are welcome.…
Argument for the Appellant
[The Solicitor General will obviously have more than this sentiment to offer, but it is the argument than can uphold a rule of law that subordinates the lesser to the greater in a case of scant authority.]
Ms. Prelogar: "Non erit alia lex romae, alia athaenis; alia nunc, alia posthac; sed et omnes gentes, et omni tempore, una lex, et sempiterna, et immortalis continebit" is how the Founders understood the foundation of the rule of law.
There will not be one law at Rome, another at Athens; one now and another afterward, but one law, eternal and immortal, shall bind all peoples together and for all time.
The law cannot serve two masters who are not of one accord. One must withdraw, and it must be the one with the lesser scope of reach. …
