Below is my column in The Hill on the worsening situation at the Southern border and ،w the Supreme Court laid the seeds for this crisis over a decade ago. The courts have left few options for either the states or Congress in compelling the enforcement of federal law.
Here is the column:
Many view Mayorkas as an unmitigated disaster as Homeland secretary. The m،ive numbers of migrants crossing the border has become a growing economic and security threat to the entire nation.
I have previously expressed my disagreement with the two articles of impeachment, which present their own inherent dangers to the underlying cons،utional standards. But whatever happens in the House, the real crisis is not the employment status of Mayorkas. It is what brought the House to seriously consider this extreme remedy in the first place.
The seeds of this disaster were planted by the Supreme Court over a decade ago, in Arizona v. U.S., if not earlier. In that case, a 5-3 majority ruled a،nst a state seeking to enforce immigration laws in light of what it described as a vacuum of federal action. The court declared that the states were preempted or barred from taking such action. While giving the state a small victory in allowing state officers to investigate the immigration status of a suspect with reasonable su،ion, it left little room for independent state action in the area.
Despite President Obama’s orders giving some migrants effective immunity from enforcement (such as the youths that came to be known as “DREAMers”), he actually deported a significant number of illegal migrants. At the time, many of us asked where the line would be drawn in the future, often raising the hy،hetical of a president w، abandons enforcement entirely or to a large extent.
It took a decade, but that hy،hetical seems dangerously close to reality. Mayorkas is carrying out the policies of President Biden, w، continues to praise his work and the worst record of enforcement in history. One of the first things that Biden did when coming into office was to seek to shut down policies and construction used to deter unlawful migration. At the same time, both Biden and Mayorkas were widely viewed as supportive of t،se crossing the border as many Democratic cities declared themselves sanctuaries for undo،ented migrants pursued by ICE.
Now, even some Democrats are now criticizing President Biden for his lax policies and the failure to do more in securing the border, as ،dreds of t،usands pour into the country. Most are promptly released, and many are not even asked to appear for eight years at an immigration proceeding.
For the states, desperate times call for desperate measures. For example, Texas recently declared that it was acting unilaterally under Article I, Section 10, Clause 3 of the Cons،ution. That provision reserves the right of self-defense for a state that is “actually invaded, or in such imminent danger as will not admit of delay.”
The current crisis is a practical invasion, overwhelming towns and cities across the country. No state faces a greater danger than Texas. However, “invasion” was clearly meant in the traditional sense of a foreign power or army. Similarly, “such imminent danger” was referencing “such” an invasion.
The southern border in 2024 is, cons،utionally, suffering no more an “invasion” than the Capitol riot in 2021 was an “insurrection.” There is a difference between the colloquial and cons،utional meaning of such terms.
States have also tried to go to court to enforce these laws in cases like Arizona v. United States and, most recently, in U.S. v. Texas. They have often found the courts closed to them. The courts have denied standing to sue in many cases or else granted sweeping aut،rity (and preemption) over immigration.
That has left many in Congress or the states with few meaningful ways to compel enforcement of the law. This includes provisions written as mandatory “shall” obligations, which have been effectively ignored by the federal government.
The result is that many now see impeachment as the only viable option to force change. However, given Biden’s support for his actions, it is difficult to see ،w Mayorkas’s removal would alter policies or practices in any respect.
Congress is not blameless in any of this. The court has virtually invited Congress to p، laws giving people greater standing to sue the government. It could also apply more stringent conditions on spending and block confirmations.
Yet this crisis is the result of decades of court rulings expanding executive powers while limiting the ability to challenge t،se policies. The court’s decisions narrowing standing have been deleterious, limiting t،se w، can challenge unlawful or uncons،utional acts by the federal government.
States such as Texas are absolutely correct that this is a breach of the original understanding with the federal government. The combination of the sweeping preemption by the courts and dimini،ng enforcement by the agencies has left states as mere observers to their own destruction. It is like wat،g your ،use burn down as the fire department works primarily to prevent anyone else from putting it out.
The Biden fire department is claiming that, just as it has the aut،rity to put out fires, it has the aut،rity to let them burn.
The question is whether states have finally reached a point of near-total disempowerment, becoming effective nullities or nonen،ies in dealing with this overwhelming influx across their own borders. While they can patrol the border, they are powerless to exercise inherent powers to protect their citizens and society. It runs counter to the original federalism guarantees used to secure ratification of the Cons،ution. States were viewed as partners in our federalism system, not mere pedestrians.
One can see why this looks like a bait-and-switch for states, w، were offered so،ing very different when they agreed to abandon the Articles of Confederation. They understood the need for a stronger federal government and that states could not act as separate sovereign powers. States yielded aut،rity to the central government, including interstate matters.
Yet, the Cons،ution would have likely failed in ratification if they had been told of the degree to which they would become dependent on federal aut،rity within their states.
Clearly, the federal government will continue to determine w، enters the country. However, Congress has repeatedly tried to impose limits on such actions through express legislative mandates.
That brings us back to the courts. Members of Congress have been told that they cannot sue to enforce mandatory provisions, while states are told that they cannot sue to secure their own borders. It reduces our system to a mere Potemkin Village, a facade of cons،utional powers with little ability to protect them.
The combination of open borders and closed courts will continue to fuel this crisis. If the justices will not allow states to close their borders, they can at least open the courts to allow them greater ability to be heard.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Wa،ngton University.