Heather Cox Richardson
On Monday, Republican governor Greg Abbott of Texas signed into law a measure that gives local law enforcement officers the power to arrest migrants, and local judges the power to send them to Mexico. Entering the state illegally would become a state crime, punishable by the state.
Aside from the deep concerns of Texas’s Hispanic population, which makes up about 40% of the state, about the measure, S.B. 4 attempts to take into state hands the power over immigration the Constitution gives to the federal government. It puts state laws in place of the laws Congress has written and which now govern immigration. Courts have repeatedly reinforced that immigration is the responsibility of federal, not state, government, including in 2012, when the Supreme Court largely struck down a 2010 Arizona law that required legal immigrants to carry their immigration papers at all times and required police to investigate the immigration status of every person they encountered.
Now, according to Uriel J. García of the Texas Tribune, “some Texas Republicans have said they hope the new law will push the issue back before a U.S. Supreme Court that is more conservative since three appointees of former President Donald Trump joined it.”
Texas Republicans are eager to exploit the issue of immigration, especially as voters are demonstrably angry over Texas’s extreme antiabortion law that has been in the news since 31-year-old Texas woman Kate Cox was forced to leave the state to obtain abortion care to protect her own health after she learned her fetus had a condition that was not compatible with life.
Republicans are trying to make immigration as powerful an issue as abortion, insisting, for example, that they will not approve emergency supplemental funding for Ukraine’s war against Russia’s invasion until President Joe Biden and the Democrats agree to their increasingly extremist demands on immigration. And yet, while Biden is so determined to get support for Ukraine that he has signaled he will risk infuriating Democratic progressives by making concessions, House Republicans have left town for the holidays, and Senate Republicans say there will not be a deal before the end of the year.
It is not at all clear that Republicans actually want to replace the outdated immigration laws that are currently in place, preferring to preserve the issue to hammer Biden in 2024.
At stake in Texas’s S.B. 4, though, is not just immigration, but also the larger question of the relationship between states and the federal government. Yesterday, civil rights and immigrant groups filed a lawsuit in Austin federal court noting that the law “violates the Supremacy Clause of the United States Constitution” and that “the federal government has exclusive power over immigration.”
Since the 1787 writing of the U.S. Constitution, which replaced the Articles of Confederation, the question of states’ rights and federal power has been central to the history of the United States. Written in the months after the thirteen colonies declared independence from a king they believed was a tyrant, the Articles of Confederation were simply a “firm league of friendship” among the 13 new states, with each retaining almost all of its rights.
But within a decade it seemed the new confederation of states would break apart. And so, in 1786, leaders called for a new government based not on states, but on the people of the nation represented by a national government. “We the People of the United States, in order to form a more perfect Union,” the Constitution began. It established a strong executive and gave to Congress power to write all “necessary and proper” laws.
The Constitution’s framers asserted that the federal government was supreme over the state governments. Article VI declared: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof…shall be the supreme Law of the Land…, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
Federal supremacy almost immediately ran into trouble as the country’s political leaders split into parties and each began to suspect the other of trying to destroy the country’s democratic government. When the Federalists in power in 1798 tried to criminalize false and malicious statements about the federal government in a series of four laws collectively known as the Alien and Sedition Acts, James Madison joined his friend Thomas Jefferson in worrying the government was on its way to becoming “an absolute, or at best a mixed monarchy.”
In what became known as the Virginia and Kentucky Resolutions, Madison and Jefferson suggested that states, acting together, had the ability to stand between the federal government and its citizens when the federal government was acting in a way that hurt those citizens.
No other states agreed at the time, but in 1832, South Carolina leaders inserted their economic interests into what for Madison and Jefferson had been a concern about the rights of citizens. After Congress in 1828 passed a federal tariff—essentially a tax on imported goods—southern leaders insisted that such a law unfairly hurt them because they had to import so much more than northerners did. The South Carolina legislature declared the federal law unconstitutional, and thus null and void within the state.
South Carolina’s leaders had discovered something crucial that would shape American history from then on: it was far easier to dominate a state legislature than the federal government. Rather than work within the federal system, they could simply insist that the states could overrule the federal government. In 1832, what was at stake was not simply the tariff, but also the South’s fundamental system: human enslavement. Recognizing they were becoming a smaller and smaller minority in the country, southern elite enslavers saw that to protect enslavement, they must carve out a power base for themselves that the nation’s majority could not touch: state governments.
To defuse the crisis, President Andrew Jackson signed into law a lower tariff in 1832, but angry South Carolinians adopted the Ordinance of Nullification, claiming that both the 1828 and the 1832 tariffs were null and void in South Carolina and threatening to leave the Union if the federal government tried to enforce them.
Jackson called the South Carolinians out for trying to work around the federal system. If states got to determine whether a law was constitutional, he wrote, “every law operating injuriously upon any local interest will be… represented as unconstitutional,” and because the state declared itself the final decider of that status, there could be no appeal. “If this doctrine had been established at an earlier day,” he wrote, “the Union would have been dissolved in its infancy.”
Such a doctrine was “incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.” He warned the South Carolinians that he would meet their plan to destroy the government with his own oath to execute its laws. Congress passed a law authorizing Jackson to use the military against South Carolina, but also passed a lower tariff, and South Carolinians backed down…for the moment.
But when voters elected Abraham Lincoln to the White House in 1860, his promise to stop the spread of human enslavement to the West sparked fear among white southerners that a free West would work with the free North to get rid of human enslavement in the South.
So South Carolina leaders asserted the right to dissolve the Union. Their Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union claimed that the federal government had violated the U.S. Constitution by attacking the institution of slavery. Once Lincoln stopped slavery from spreading, they wrote, “slaveholding States will no longer have the power of self-government, or self-protection, and the Federal Government will have become their enemy.”
After four years of war, Congress set out to end the ability of state leaders to undermine the federal government once and for all. In 1868, Americans added to the Constitution the Fourteenth Amendment. Southern state legislatures had tried to push Black Americans back into a form of quasi-enslavement; the amendment put a stop to that. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” it said, “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” It also gave Congress the power to enforce the amendment.
But the struggle between federal and state power was not, in fact, resolved. Federal strength faded during Reconstruction as voters turned against the federal protection of Black Americans. States imposed Jim Crow and Juan Crow laws discriminating against minorities. After World War II, federal government power grew again, with the Supreme Court relying on the Fourteenth Amendment to protect civil rights. But that power, too, faded.
Businessmen who hated federal government regulation and taxes joined with racists and traditionalists who opposed equal rights for minorities and women to oppose federal power. Recognizing they were a political minority, they called for a return to what they called an “original” interpretation of the Constitution: one that focused power, once again, in the states.
It feels odd to write about S.B. 4 and the Nullification Crisis together in 2023. But it jumps out that while the attempt of the Republican-dominated Texas legislature to write its own immigration laws is in part a partisan attempt to whip up a political advantage in 2024, it is also a sign of a political minority that recognizes it cannot win control of the national government through democratic means.