The ink was barely dry on the US Supreme Court’s interim ruling on the controversial Texas immigration (“razor wire”) case before the pearl-clutching and denouncements had begun this week.
“The Supreme Court on Tuesday cleared the way for Texas to immediately begin enforcing a controversial immigration law that allows state officials to arrest and detain people they suspect of entering the country illegally,” said one prominent news organization. Soon after progressive groups poured on, decrying the Court, just days before dozens of migrants stormed across the southern border in El Paso, Texas.
The reality was of the court conflict, however, is a bit different. A quick review.
Back in December, Texas Gov. Greg Abbott signed into law SB4, which criminalized illegal migrant entry into the state and authorized Texas officials to enact a series of quasi-deportation proceedings. The Biden administration and pro-immigration activists sued, arguing the law violated the Supreme Court’s 2012 ruling in Arizona v. United States which held that the feds — and not the states — must enforce immigration laws.
After a federal district court issued a preliminary injunction on Feb. 29 effectively putting the Texas law on hold, the 5th Circuit Court of Appeals issued a very short-term “administrative stay” of that lower court ruling. The court also put its own decision on hold pending direction from the Supreme Court (don’t worry if you’re confused, it’s confusing to us lawyers).
In writing for the 6-3 majority, Justice Amy Comey Barrett admonished the 5th Circuit, noting a reluctance of the Supreme Court to wade into the back-and-forth stays of the lower courts. As the majority sees it, the 5th Circuit should get its act together and move swiftly to fully resolve the case or face further review by the high court. The 5th Circuit got the message: by Wednesday, it had reinstated the district court’s injunction putting SB4 back on hold.
Lots of huffing and puffing about, well, not too much, but that didn’t stop many panicky news organizations and “experts” from arguing the Supreme Court had taken another “extreme” position inconsistent with precedent.
Whatever happens in the 5th Circuit, this case will almost assuredly have to be resolved by the US Supreme Court this spring or later in the year. And while a longer-term stay is unlikely, Texas could prevail in the high court on the merits. Here’s why.
In that 2012 Arizona case, the Supreme Court held that the state could not detain aliens for removal or deny them work permits, as those are federal enforcement functions. Justice Anthony Kennedy wrote the majority opinion and was joined by Chief Justice John Roberts.
But, in a powerful dissent, the late Justice Anthony Scalia argued that Arizona’s laws should not be discounted because they don’t change or alter federal law but merely provide an additional means of enforcing it.
Thus the central question in any Supreme Court review is whether Justices Neil Gorsuch, Barrett and Brett Kavanaugh will be persuaded by the late Scalia’s opinion in favor of Gov. Abbott, particularly given the Biden administration’s failure to enforce immigration laws, which has allowed over 8 million illegal crossings since 2021. It’s possible.
For the White House, however, the case offers Biden a golden opportunity — if only he could recognize it. The White House could effectively end this conflict by sitting down with Abbott and pledging to work cooperatively to end the open borders policy. Biden can do this with section 1182 authority which has been already validated by the Supreme Court.
This would serve two important purposes. First, it would stem a migrant catastrophe that is spinning out of control. By virtue of open borders, the federal government has imposed on border states and cities like New York billions of dollars in unprecedented costs (as much as $20 billion in New York alone!) for migrant housing and welfare.
The crisis has exposed our citizenry to untold risks of terrorism, fentanyl, crime, public disorder, and widespread resentment of migrants in a country historically supportive of legal immigration. The administration only needs to look at migrant crises in Europe to see how mass unassimilated migration causes severe political chaos.
Although unpopular with the extreme left, a “Sister Souljah”-style pivot to the center would also help Biden politically, much as it helped Clinton two decades ago. Seventy to 80% of the public disapproves of Biden’s open border policies, which have been especially unpopular with working-class whites, blacks, and Hispanics who know the downward pressure on wages caused by uncontrolled migration.
These are the same folks who are leaving the Democratic party in droves — and who Biden needs to win come November.
A détente with Texas would surely enrage the activist intersectional left. But as Ruy Teixeira and others have pointed out, the hard left is a paper tiger without much voter power: They only represent about 6% of voters who mostly bluff about sitting out an election.
Biden and Sen. Chuck Schumer make a similar mistake by publicly scolding Israel and pressuring it to scale back efforts to rid Gaza of the mass murdering, Nazi- and ISIS-like Hamas terrorists as a way of pandering to the “Dearborn vote.” But in the same way that catering to the activist left undermines the core values of both Israel and the US, catering to the far left on immigration undermines our core values of a sensible, widely supported legal immigration system.
There are far more voters in the political center — filled with the moderates and independents that Biden is now losing because of his migrant bungle. Those voters still remain open to the President, if only the White House could muster the courage to capitalize on this Sister Souljah opportunity it now has right under its nose.
Julian Epstein is the former Democratic Chief Counsel to the House Judiciary Committee.
