“For well more than a century, the federal government has enjoyed near exclusive authority over immigration policy, while states have largely been restricted to assisting in carrying out federal policies. The Supreme Court has reinforced this rule many times over many decisions, such as Truax v. Raich (1915), which said that “the authority to control immigration — to admit or exclude aliens — is vested solely in the Federal Government.”
Texas, however, now wants the Supreme Court to abandon this longstanding constitutional rule, and it thinks that the political tumblers have finally aligned in a way that would lead the Court to do just that.
Texas seeks to upend the longstanding balance of power between the federal government and the states through a law, known as SB 4, which allows Texas state courts to issue deportation orders that will be carried out by Texas state officials. The law is now before the Supreme Court in two “shadow docket” cases, known as United States v. Texas and Las Americas Immigrant Advocacy v. McCraw.”
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“The reason why the federal government has historically had exclusive authority over nearly all questions of immigration policy is to prevent a single state’s mistreatment of a foreign national from damaging US relations with another nation. Indeed, Hines v. Davidowitz (1941) warned that “international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs” committed against foreign nationals.
Which isn’t to say that the United States must always treat foreign citizens with caution or deference — just that a decision that could endanger the entire nation’s relationship with a foreign state should be made by a government that represents the entire nation.”
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“the current Supreme Court has only a weak attachment to following precedent, especially when a precedent is widely disliked by modern-day Republicans. So there is at least some risk that the Court’s GOP-appointed majority will allow SB 4 to go into effect.”
“freedom of expression is crucial and central to the American project. It’s also not a force field by which people are shielded from other rules. If I want to get people’s attention by, say, driving 120 miles an hour while sporting a Palestinian flag, I cannot tell the officer who pulls me over for reckless driving that I’m simply exercising my free speech rights. The First Amendment does not give carte blanche to violate the law.”
“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
Quite a mouthful, right? Let’s simplify. Here’s a streamlined version of the clause with only the most relevant parts highlighted:
“No person shall … hold any office, civil or military, under the United States, … who, having previously taken an oath, … as an officer of the United States, … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same …”
The justices are sure to delve into the precise meaning of those pivotal phrases. For example:
Was the Jan. 6, 2021, attack on the Capitol an “insurrection”? If not, the insurrection clause doesn’t apply.
Even if Jan. 6 was an insurrection, did Trump “engage” in it? If not, he is eligible to hold office again.
When Trump took his oath of office as president, did he take that oath as “officer of the United States”? If not, the disqualification provision does not apply to him.”
“The governors and Abbott claim that states have a “right of self-defense” under Article 4, Section 4 of the Constitution (which guarantees that the federal government will “protect each [state] against Invasion”) and Article 1, Section 10, Clause 3 (which allows states to “engage in War” if “actually invaded,” which Abbott says gives Texas the “constitutional authority to defend and protect itself”).
This argument misunderstands the long-established legal and practical definitions of an “invasion.” It also misconstrues the nature of unauthorized migration.
James Madison and other drafters of the Constitution, Abbott argued, “foresaw that States should not be left to the mercy of a lawless president who does nothing to stop external threats like cartels smuggling millions of illegal immigrants across the border.” But “those who cite Madison in support of equating immigration and invasion ignore the one time he directly addressed this very question,” writes the George Mason University law professor Ilya Somin at The Volokh Conspiracy, a group blog hosted by Reason. Madison did so in “the Report of 1800, which rebutted claims that the Alien Friends Act of 1798 (which gave the president broad power to expel non-citizens) was authorized by the Invasion Clause.”
“Invasion is an operation of war,” declared Madison. “To protect against invasion is an exercise of the power of war. A power therefore not incident to war, cannot be incident to a particular modification of war. And as the removal of alien friends has appeared to be no incident to a general state of war, it cannot be incident to a partial state, or a particular modification of war.”
“Every court that has reviewed the question” of what qualifies as an invasion has interpreted it as “an ‘armed hostility from another political entity,'” wrote the Cato Institute’s David J. Bier for Reason in 2021. In 1996, California made the same argument as Abbott, saying that the federal government had failed to protect it against an “invasion” of “illegal aliens.” But the U.S. Court of Appeals for the 9th Circuit rejected that: “Even if the issue were properly within the Court’s constitutional responsibility, there are no manageable standards to ascertain whether or when an influx of illegal immigrants should be said to constitute an invasion.” Besides, the 9th Circuit said, California ignored Madison’s conclusion in Federalist No. 43 that the Invasion Clause affords “protection in situations wherein a state is exposed to armed hostility from another political entity.”
This is where Abbott runs into another issue: Undocumented immigrants bear little resemblance to an invading foreign army. Despite the constant invocations of “military-age” men crossing the border (the fearmonger’s favorite way of saying “young men”), there has also been a historic influx of migrant families. Large groups of border crossers marching through the Sonoran Desert or trudging across the Rio Grande may make good footage for media outlets intent on fearmongering, but the overwhelming majority are coming here for economic or humanitarian reasons, not to commit crimes or sow chaos.”
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“By and large, people are happy to go through the legal immigration process if the steps are clear and accessible—but right now, they tend not to be. It’s up to Congress to pass immigration reforms that recognize these realities. Abbott’s misrepresentation of the Constitution does nothing to help.”
“During the Constitutional Convention in 1787, the framers debated how to allocate military and war powers among the branches of government. Some, like Pierce Butler of South Carolina, thought that power should lie with the president, while most others, including Elbridge Gerry, “never expected to hear in a Republic a motion to empower the Executive alone to declare war.” (Emphasis added.) Reflecting this consensus, James Madison successfully moved to change a draft sentence that empowered Congress to “make” war to language empowering it to “declare” war — the implication being that “the Executive should be able to repel and not commence, war,” in the words of Connecticut delegate Roger Sherman.”
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“Convinced that paying off the pirates was both costly and without an end in sight, Jefferson resolved to take military action. For weeks, his cabinet debated whether the president had sole authority as commander-in-chief to send naval forces to the Mediterranean in a defensive posture. Only one, Attorney General Levi Lincoln, argued that he needed congressional approval even for this limited measure. But the cabinet’s general consensus held that Jefferson enjoyed some prerogative.
Jefferson agreed. Without congressional approval, he sent an American fleet to the Mediterranean, with detailed instructions of what to do — and what not to do. Commodore Richard Dale, the officer in charge, was ordered to “sink, burn, capture, or destroy vessels attacking those of the United States.” But his men were not to initiate combat or step foot on Barbary land. Only after the Republican Congress authorized “warlike operations against the regency of Tripoli, or any other of the Barbary powers,” did Dale’s forces proactively attack the pirate states on their own land. Ultimately, American military success, particularly at the Battle of Derna in 1805, convinced the Barbary authorities that it was time to call a truce. The Treaty of Peace and Friendship, signed the same year, effectively drew a close on Jefferson’s Barbary wars.”
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“Contrary to the assertions of progressives like Jayapal and conservatives like Greene, presidents since the founding have affirmed their authority and responsibility to deploy military forces defensively without congressional approval.
To date, Biden has unilaterally ordered targeted strikes against Houthi military targets to diminish the terrorists’ ability to persist in their piracy. He hasn’t ordered a ground invasion of Yemen, a wider offensive against civil and governmental assets or an initiative to depose the Houthi government. He has followed closely in Jefferson’s footsteps, even if 250 years of evolution in technology and warfare make a direct comparison complicated.”
“The core question in Rahimi, in other words, is whether the Court will back away from its decision in Bruen, which has led to all kinds of disastrous results, including the Fifth Circuit’s decision holding that abusive husbands have a right to keep a weapon they could use to murder their wives.”
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“Bruen held that, in order to justify nearly any law regulating firearms, “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” This means that lawyers defending even the most widely accepted gun laws, such as the federal ban on gun possession by domestic abusers, must show that “analogous regulations” also existed and were accepted when the Constitution was framed — particularly if the law addresses “a general societal problem that has persisted since the 18th century.” If they cannot, the challenged gun law must be struck down.
This places an extraordinarily high burden on any lawyer defending a gun law. When the historical record is ambiguous or indeterminate, the government loses, and a gun law is effectively repealed by the courts. And lawyers defending gun laws face an especially heavy burden when they defend laws that seek to address a problem, like domestic abuse, that has existed for centuries.
Almost immediately, the Bruen decision sparked mass confusion in the federal courts. Judges have reached contradictory results in a multitude of post-Bruen challenges to gun laws. Courts applying Bruen have struck laws prohibiting guns in places of worship, requiring guns to have serial numbers that allow them to be tracked by law enforcement, and prohibiting underage ownership of guns — all claiming that these laws are inconsistent with “historical tradition.””
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“On the day Bruen was decided, Justice Stephen Breyer warned in a dissenting opinion that, by requiring judges to dive into often-vague and indeterminate historical records, Bruen “imposes a task on the lower courts that judges cannot easily accomplish.” “Courts are, after all, staffed by lawyers, not historians,” Breyer continued. And “legal experts typically have little experience answering contested historical questions or applying those answers to resolve contemporary problems.””
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“One fundamental problem with Bruen, as Judge Miller’s critique of the decision emphasizes, is that the six Republican-appointed justices who joined it appear to have no understanding of why changes in American society over the past 250 years make it difficult or impossible to draw meaningful analogies between modern gun laws and those that existed when the Constitution was written.”
“Publicly, President Joe Biden accused the platforms of “killing people” by failing to suppress speech that discouraged vaccination against COVID-19. Murthy likewise said that failure was “costing people their lives.” White House Press Secretary Jen Psaki declared that social media companies “have a responsibility related to the health and safety of all Americans to stop amplifying untrustworthy content, disinformation, and misinformation, especially related to COVID-19, vaccinations, and elections.” If they failed to meet that responsibility, Murthy said, “legal and regulatory measures” might be necessary. Psaki floated the possibility of new privacy regulations and threatened social media companies with “a robust anti-trust program.” White House Communications Director Kate Bedingfield said the platforms “should be held accountable,” which she suggested could include reducing their legal protection against civil claims based on users’ posts.
Privately, administration officials pressed Facebook et al. to delete or downgrade specific posts and banish specific speakers, to take action against content even when it did not violate the platforms’ rules, and to expand those rules so that any speech federal officials viewed as dangerous to public health could be deemed a violation. Their “requests” were sometimes phrased as demands.”
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“Flaherty emphasized that he was acting on the president’s behalf, that his concerns were “shared at the highest (and I mean highest) levels of the [White House].” White House officials invoked previous perceived failures at content moderation, which they said had been disastrous. “When Facebook did not take a prominent pundit’s ‘popular post[]’ down,” the 5th Circuit notes, senior White House COVID-19 adviser Andrew Slavitt “asked ‘what good is’ the reporting system, and signed off with ‘last time we did this dance, it ended in an insurrection.'” In another exchange, Flaherty “demand[ed] ‘assurances’ that [Facebook] was taking action” and “likened the platform’s alleged inaction to the 2020 election, which it ‘helped increase skepticism in,'” adding that “an insurrection…was plotted, in large part, on your platform.'”
When social media companies failed to do what the administration wanted, White House officials reacted angrily. Flaherty noted that a flagged Facebook post was “still up,” asking, “How does something like that happen?” Facebook was “hiding the ball,” Flaherty complained. “Are you guys fucking serious?” he said in another email to Facebook. “I want an answer on what happened here and I want it today.” Because Facebook was “not trying to solve the problem,” Slavitt said, the White House was “considering our options on what to do about it.””
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“By and large, especially after Biden and Murthy accused social media companies of killing people, the platforms did what the White House wanted. They were eager to appease the president, repeatedly asking how they could work together to address his concerns. In this context, the 5th Circuit says, it is likely that the pressure campaign amounted to “coercion” and that the White House unconstitutionally shaped moderation decisions.”
“a few jurisdictions in Texas are now breaking with this consensus. As the Washington Post reports, two Texas counties and two Texas cities have passed local ordinances making it illegal to transport someone through one of these counties or cities for the purpose of obtaining an out-of-state abortion.
Notably, this list of anti-abortion localities includes Mitchell County, Texas, a sparse community of about 9,000 people. This matters because Interstate 20, the route that many people traveling from Dallas to New Mexico to receive an abortion will take, passes through Mitchell County. Several other counties with major highways or airports are also considering similar laws.
These ordinances and proposed ordinances largely track model legislation, which anti-abortion activist Mark Lee Dickson shared on Twitter, that is itself modeled after SB 8 — the statewide anti-abortion law that allows private bounty hunters to sue abortion providers and collect bounties of $10,000 or more.
In fairness, Dickson’s model legislation does prohibit such bounty hunter suits from being filed against “the pregnant woman who seeks to abort her unborn child.” But the legislation would potentially allow abortion funds that help pay for abortion care, or anyone who drives a pregnant patient to an out-of-state abortion clinic, to be sued.
Ordinarily, Kavanaugh’s preemptive rejection of travel bans would be a clear sign that these laws will not survive judicial review. But, in Whole Woman’s Health v. Jackson (2021), the Supreme Court effectively shut down federal lawsuits challenging unconstitutional laws that are enforced solely by bounty hunters. And Kavanaugh joined the Court’s decision in Jackson.
The upshot is that these unconstitutional Texas ordinances may succeed, not because they are lawful but because the Supreme Court has largely immunized them from constitutional review.”
“Republican Florida Gov. Ron DeSantis floated two unconstitutional proposals that would lead to the US executing more people.
The first, which he suggested during an appearance before the Florida Sheriffs Association, was to allow juries to sentence someone to die even if the jury vote is not unanimous. “Fine, have a supermajority,” DeSantis said, adding that executions should be permitted if “maybe eight out of 12 or something” of a jury’s members vote for the death penalty.
The Supreme Court held in Ramos v. Louisiana (2020) that a jury must vote unanimously in order to convict someone of a “serious offense.” Meanwhile, the Court held in Hurst v. Florida (2016) that “the Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” Read together, the cases leave little doubt that a jury’s decision to sentence someone to die must also be unanimous. (There is always some risk that the Court’s current majority will refuse to follow Ramos or Hurst, but neither of these cases divided the Court along ideological lines when they were decided.)
A few days after offering this first half-baked proposal, DeSantis spoke at the Miami Police Benevolent Association hall, where he not only reiterated that idea, but also laid out a broader agenda on crime that included expanding the death penalty to offenders who rape children. The Supreme Court explicitly rejected this expansion of the death penalty in Kennedy v. Louisiana (2008). Among other things, Kennedy warned that, if sexual assault of a child carried the same penalty as murder, that would endanger children because “a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim.””