Prof. Stephen I. Vladeck on the Border, the Constitution, and Gov. Abbott

Essential reading for con law and border buffs:

1.  Federalism at the Border: "...My goal in this post is to provide a bit of a broader overview of what the Supreme Court has said about the relative roles and responsibilities of state and federal governments when it comes to immigration policy (and federal law enforcement, more generally)—with an eye toward explaining (1) the difference between states supplementing federal authority and states supplanting it; (2) why sanctuary cities are different; and (3) why much of what Texas is currently doing is likely preempted by federal law, at least so long as the Supreme Court’s 2012 decision in Arizona v. United States remains good law. Of course, part of Texas’s strategy appears to reflect an organized and orchestrated effort to persuade the Court to revisit Arizona, but such a move by the justices would have potentially monumental effects far from the specific context of immigration policy. ..."

2.  Governor Abbott’s Perilous Effort at Constitutional Realignment: "... As Texas has escalated its efforts to carry out its own immigration policy along the U.S.-Mexico border, it has also embraced, both publicly and in litigation over its placement of buoys in the Rio Grande, a federal constitutional argument that, it claims, allows it to supplant federal law enforcement efforts. Specifically, Texas Governor Greg Abbott (R) and Texas’s lawyers have advanced the highly charged claim that Texas is being “invaded” by migrants who are attempting to enter the United States without authorization—and that Texas therefore has a right under Article I, § 10, Clause 3 of the federal Constitution not just to defend itself, but to do so in contravention of otherwise valid federal statutes and policies. ... [I]magine a universe in which states, under the guise of “self-defense,” could decide to interfere with or otherwise impede federal trade rules or treaties, or other areas in which the federal government’s policy choices have foreign policy ramifications. On this reading, states could not just impede what the federal government is doing; they could affirmatively undermine the reasons for which the federal government is doing it. And in a universe in which the United States ever is “actually invaded” by a foreign army, Texas’s reading would effectively allow for the governors of the states under direct assault to assert strategic and tactical control over the response. Suffice it to say, the parade of horribles that would result from Texas’s interpretation of Article I, § 10, Clause 3 is a long one—regardless of how one feels about current U.S. immigration policy. And that’s all the more reason for all of us to be cautious before we ignore the text, structure, and history of the Constitution in our response."

Stephen I. Vladeck (@steve_vladeck) holds the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law, and is a nationally recognized expert on the federal courts, constitutional law, national security law, and military justice. Vladeck is author of the New York Times bestselling book, "The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic." He has argued over a dozen cases before the U.S. Supreme Court, the Texas Supreme Court, and various lower federal civilian and military courts; has testified before numerous congressional committees, Executive Branch agencies, and the Texas legislature; has served as an expert witness both in U.S. state and federal courts and in foreign tribunals; and has received numerous awards for his influential and widely cited legal scholarship, his prolific popular writing, his teaching, and his service to the legal profession.