The issue of illegal immigration into the United States over the southern border, particularly in Texas hot spots, has risen to the top of the American political agenda. During the three years of the Biden administration, illegal immigration, measured by total apprehensions, ran from about 1.66 million in 2021, to 2.21 million in 2022, to 2.05 million in 2023, for a total of 5.92 million, many of whom are unaccounted for. The comparable figure for the last three years of the Trump administration totaled about 1.6 million. The immigrants often have free range of mobility within the United States, so a struggle has arisen to decide where these men, women, and children should live and who should fund their stay. Historically, that burden has fallen on the states.

Texas Governor Greg Abbott has provided many illegal immigrants free one-way transportation out of Texas, with New York City being one of the major destinations. It is very clear, however, that these defensive measures after entry are at best an incomplete solution if no government actor can stem the initial flow into the United States, which means that someone has to step up at the border. This crisis has led to a constitutional struggle between Texas and the federal government over who shall control what at the border. In the latest chapter of the ongoing border saga, Texas initiated a self-help scheme, placing concertina wire (c-wire) at the border to stave off what Abbott termed an “invasion,” when perhaps the less militaristic “influx” is a more accurate term. Either way, “Texas sued Defendants in federal court alleging common law conversion, common law trespass to chattels, and violations under the Administrative Procedure Act (APA),” according to the court record. The Fifth Circuit Court of Appeals then issued a published order that prevented the federal government from removing the c-wire. The most telling allegation in its decision was that “Border Patrol agents cut two additional holes in the c-wire fifteen feet away from an existing hole and installed ‘a climbing rope for migrants,’ ” who were then sent on in the hopes that, unsupervised, they would report to the nearest immigration center. The Fifth Circuit further found that the United States did not need to cut the c-wire in order to apprehend illegal immigrants, and, further, that it could not justify removing the c-wire by pointing to occasional medical emergencies as a reason for allowing the wholesale entry of illegal aliens. The United States Supreme Court, by a narrow 5-4 vote, overturned the Fifth Circuit in a brief unsigned order.

Looming behind this dispute is a quarrel about the constitutional authority of the federal government to control immigration, both legal and illegal. A quick look at the United States Constitution reveals that the document is utterly silent on the issue. In a system of enumerated powers, the basic rule is that any powers not assigned to the federal government are left to the states. Indeed, there the matter sat, given that the United States had for close to a hundred years followed an open-immigration policy that let everyone in. The explicit federal power on this subject was its power “[t]o establish an uniform Rule of Naturalization,” which allows the federal government to set the conditions whereby individuals who are not citizens can become so. But the power to naturalize some people does not of its own weight give the right to deport or expel those individuals who did not apply for or did not receive citizenship. Those decisions would still be left, appropriately, to the states.

One effort to avoid that limitation is to point to the one open-ended provision of the Constitution that allows Congress “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” The challenge of interpretation is to give this clause sufficient scope here while not allowing it to rip the basic structure of the Constitution into tatters. So “carrying into execution” must be read, as is well documented, to give Congress the power to make sure that at every level of the federal government, its officials have the means to achieve their constitutional ends, such that the federal government can ensure that naturalization officials collect applications and administer the system whereby these newly minted citizens can retain or lose their citizenship. But immigration is a separate power that falls outside these narrow parameters.

Another ingenious effort is to find federal power of immigration in the commerce clause, which gives Congress the power to “Regulate Commerce with foreign Nations, among the several states and with the Indian tribes.” Immigrants do come in from abroad, and the clause might reach those passengers who come in by some recognized form of transportation. But the early cases like New York v. Miln (1837) note that the federal power stops at the ports where state inspection laws begin, so in the antebellum period, states took over the immigration power from the federal government once immigrants entered the country. Anyhow, no one thinks that that illegal immigrants streaming over the border are part of foreign (or domestic) commerce.

So, the textual materials draw a blank in the search for the constitutional authority ceded to the federal government. But that textual conclusion, correct as it may be, also creates a huge governance gap that became clear in the 1880s, when immigration control rose to the top of the political agenda of the time. And so it is that the courts have deemed the federal power over immigration a “plenary power” of a sovereign nation. But how? In Ping v. United States (1889), Chae Chan Ping was a lawful noncitizen resident of the United States who had received in 1887 official written permission to return to the US after his visit to China, only to be turned away on his return in 1889 after a new 1888 statute explicitly prohibited his return, given that the law said that the presence of Chinese laborers had “a baneful effect upon the material interests of the state, and upon public morals,” and thus counted as an “Oriental invasion, and . . . a menace to our civilization.” And so, without citation to any constitution text, Justice Field held that “the power of exclusion of foreigners [was] an incident of sovereignty” which “cannot be granted away or restrained on behalf on any one” by any government contract.

Note that the discussion in Ping is focused on exclusion, not admission, and there is good reason for that limitation. It is perfectly clear that, as with prior practice, if admission powers were given to each of the sovereign states separately, then any single state could undermine the perceived security of the nation by admitting aliens through its ports, only for them to spread throughout the nation with the kinds of adverse effects we are experiencing today.

But does it follow from these earlier cases that the federal government has, as the government has forcefully maintained, the final word under the supremacy clause? Not so fast. Any federal power which has been deemed so should not necessarily be regarded as absolute. Here, the counterargument has weight. No one from Texas says the state has the power to admit aliens that the federal government has excluded, which could create the unwanted influx everyone fears. But in this converse situation, the federal government has not only abandoned border protection in key hot spots, but has, by “throwing down a climbing rope,” assisted the entry of illegal aliens by performing acts that under federal law applicable to “any person” would be a criminal act if done by any private person.

The argument in favor of Texas is this: if this implied federal power is created by a social necessity, it should be so limited by that same necessity when the federal government does nothing to execute its powers over immigration, but instead uses its force to subvert the ends it is supposed to serve, all to the great disadvantage of the states. Texas merely wants to exclude those who have no right to be here in the first place. This appeal to necessity is not unique to public law. It is common in all areas of private law, of which the most noted examples are cases of private and public necessity, which suspend ordinary property rights—namely the right to exclude—in the face of storms, earthquakes, and enemy invasions that justify entry without consent into someone else’s property to the extent needed  to preserve life and property from imminent peril. That exception is properly narrow, but no matter how narrowly construed, the widespread confusion throughout the nation meets the necessity standard to allow the states to march in where the federal government is inert.

The federal power at issue here should be transferred to the states unless and until the federal government demonstrates a major commitment—not a mere show of words—to tackle the intolerable mayhem along the Texas border.

© 2023 by the Board of Trustees of Leland Stanford Junior University