• Show Notes

Dear Reader,

The political firecracker known as SB-4 – a Texas law that would give state-level officials the power to enforce U.S. immigration law – is, ultimately, doomed. I make this bold prediction based on years of legal training and experience, combined with deep scholarly study of the Constitution and relevant precedent. 

Also: it just can’t be.

Sometimes, legal analysis need go no further than that. In most cases, pretty much any lawyer or judge can take a desired outcome and then backfill some caselaw or statutory interpretation to justify that result. There’s rarely some undeniably “correct” legal outcome to be discovered. 

But on some issues, there’s only one practical answer. We saw this recently when the Supreme Court unanimously (and predictably) rejected the Colorado Supreme Court’s ruling disqualifying Donald Trump from the 2024 presidential ballot under the Fourteenth Amendment. While experienced scholars compiled wishful tomes articulating a contrary constitutional rationale, in the end there was simply no way the justices would countenance a system in which each individual state could decide whether, and how, to disqualify a presidential candidate. That outcome would create political chaos, and it was never seriously in play, in my view. Sometimes you can see the future simply by asking, “Is there really some world where this is the result?” 

A similarly pragmatic analytical approach (you can call it “dumbed-down” if you please, but I’m telling you, it works) applies to SB-4. The Texas law – signed with performative, self-congratulatory gusto by Governor Greg Abbott in December 2023 –  purports to empower state law enforcement officials to arrest people who are in the United States illegally, to prosecute and potentially fine and imprison them, and to deport them. Those functions are traditionally (and, as we’ll discuss in a moment, constitutionally) reserved exclusively to the federal government. 

Just as Abbott surely intended, SB-4 has generated a political firestorm. Indeed, the Texas governor has emerged as the modern maestro of border-based spectacle. First, he sends busloads of migrants – actual human beings, many of them in distress – to liberal-leaning cities in the Northeast and elsewhere: Oh, you bleeding hearts want to cry about how we treat migrants, how’d you like a couple hundred of your own? Not so sensitive now, are you? It was a cruel, dehumanizing stunt – but as political theater, it worked. Witness, for example, Democratic New York City Mayor Eric Adams, who declared that the influx of migrants “will destroy New York City” and blamed the federal government for failing to address the City’s needs. Abbott’s fellow Republicans seized on Adams’s remarks and used them to cudgel President Joe Biden on border policy.  

Then Abbott ushered in SB-4. The political message around it was as unsubtle and devastatingly effective as a Nolan Ryan heater: Joe Biden and his liberal bureaucrats in DC won’t protect the border? Well, I will. Don’t mess with Texas and all that. Keep in mind: Abbott’s a lawyer, a former practitioner and state judge. He knows what he’s doing, and he’s sharp enough to understand that SB-4 is legally dubious, and likely worse than that. Maybe he doesn’t care. Or perhaps that’s precisely the point, to play the renegade border enforcer who went down in a Bon Jovi-esque Blaze of Glory before those robed elitists in DC.

Over the past few months, SB-4 has endured quite the procedural roller-coaster. Biden’s Justice Department challenged the law and, just days before it was to go into effect, a Reagan-nominated federal district court judge put it on hold pending further appeal. But the Fifth Circuit Court of Appeals temporarily reversed the district court, permitting the law to go into effect – until the Supreme Court stepped in and put the law back on hold. 

Believe it or not, that’s the (relatively) sane part. As the Supreme Court expert Steve Vladeck noted, in a wild two-day stretch last week, the law went from “not in effect” at 4:00 p.m. on Monday; to “in effect” for four minutes, until 4:04 p.m.; to “not in effect” for the next 21 hours, until around 1:05 p.m. on Tuesday; to “in effect” for eight hours and change; and then, at around 11:00 p.m. on Tuesday, back to “not in effect.” As we live and breathe at this very moment, SB-4 is not in effect – but, then again, it took me three and a half seconds to type that sentence, so it might’ve changed again in the meantime.

At the most fundamental level, if the federal courts ultimately allow SB-4 to stand, then they’d invite mass confusion and conflict across our Southern border and beyond. If Texas can empower its state and local officials to enforce immigration law, then what’s to stop Arizona or New Mexico from adopting their own unique enforcement regimes? How about Michigan or New York or Washington along the Northern border, for that matter? Or even non-border states, where law enforcement officers often encounter people without legal status? How would our massive, entrenched federal immigration enforcement agencies co-exist with a smorgasbord of varied state regimes? Do state-level cops have the proper training and expertise to patrol the border and enforce immigration laws? How would we deal with foreign nations on issues of immigration if we couldn’t speak with one unified, federal voice? We’d end up with the same fundamental problem that ultimately sank the Fourteenth Amendment challenges: it would create untenable chaos to leave this issue to individual, state-by-state determinations.  

Fortunately, the precedent here is Con Law, Chapter One-type stuff. Under the Constitution’s Supremacy Clause, federal laws generally are the “supreme Law of the Land,” and pre-empt any effort by states to enforce their own laws in a given field. The Supreme Court has long held that “the authority to control immigration—to admit or exclude [noncitizens]—is vested solely in the Federal government.” Way back in 1875, the Court recognized that “[i]f it be otherwise, a single State [could], at her pleasure, embroil us in disastrous quarrels with other nations.” (Sometimes you just have to let the old-timey language do its thing.) More recently, the Court in 2012 reaffirmed the long-held, uncontroversial proposition that the feds hold “broad, undoubted power over the subject of immigration” and the status of non-citizens. We don’t often see law as overwhelmingly clear-cut and firmly-entrenched as this.

Texas’s response, as noted above, is essentially that the feds aren’t getting the job done, so we’ll do it ourselves. That’s a cool political tagline, and it might even be true, but it’s empty hokum as a matter of law.

As untenable as this all seems, SB-4 will ultimately come before the U.S. Supreme Court and its 6-3 conservative majority. You never know what the Court might do, and they’ve engaged in some impressive acrobatics to justify partisan, policy-motivated outcomes. But I’m confident that two or more of the reasonable conservatives – Chief Justice Roberts and Justices Gorsuch, Kavanaugh, and Barrett – will see SB-4 for what it is: a flagrantly, almost intentionally-unconstitutional stunt that would create unworkable, state-by-state mayhem. SB-4 simply can’t, and won’t, stand.

Stay Informed,