From the Associated Press: “Republican lawmakers in Texas are proposing legislation that would make it a state felony to cross the border from Mexico illegally and create a new border police force that could deputize private citizens, the latest in the state’s continued push to test the limits of the federal government’s authority over immigration.”
At first glance, this state law is set to run into a legal buzzsaw in the form of the precedent set by Arizona v. United States, a Supreme Court decision in 2012 that ruled that states may not implement their own immigration laws. Justice Anthony Kennedy wrote for the majority:
The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.
But . . . that 5-3 decision was in 2012, and the Supreme Court looks different now. Justices Kennedy, Ruth Bader Ginsburg, and Stephen Breyer aren’t there anymore. The dissenting justices back then were Clarence Thomas, Samuel Alito, and Antonin Scalia. It is conceivable that today’s Supreme Court might be much more sympathetic to an argument that the federal government has done such a poor job enforcing immigration laws that it is reasonable for state governments to step in and take up the slack.