In a system of federalism, free and sovereign citizens divide power between state and federal governments. Now, thanks to the Texas state government, freedom and federalism stand poised to gain an important victory.
This weekend on Fox News’ “Sunday Morning Futures” with host Maria Bartiromo, Republican Gov. Greg Abbott of Texas promised he soon will sign a bill that will make illegally crossing Texas’ border with Mexico a state crime.
“In two weeks, I’ll be signing a new law in the state of Texas that will make it illegal for people to enter the state of Texas from another country illegally and authorizing every peace office in the state of Texas to arrest those people entering our country illegally,” Abbott said.
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Were I to advise Abbott on the best way to speak about the new law — not a way that would satisfy lawyers but nonetheless the most constitutional and truthful way — I would encourage him to substitute “entering our state illegally” for “entering our country illegally.” More on that in a moment.
According to The Texas Tribune — an Austin-based news outlet focused on statewide news — the law will have major implications.
Senate Bill 4, approved last month, will authorize Texas police to arrest illegal immigrants on state charges.
Under the legislation, an illegal crossing between ports of entry will result in a Class B misdemeanor. A prior conviction will make the charge a second-degree felony.
State police will not have unlimited discretion, as they should not under any circumstances. For instance, the legislation forbids arrests in places such as secondary schools, churches and health care facilities.
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Republican state Rep. David Spiller, who sponsored the bill in the Texas House, also noted the legislation will authorize police to focus only on immigrants who have crossed illegally in the last two to three years. Statutes of limitations will prevent law enforcement officials from targeting any illegal immigrant who arrived before then.
Of course, the usual suspects have lined up to denounce the bill.
According to The Texas Tribune, opponents already have cried “racial profiling.”
In a Nov. 15 statement following the bill’s passage, the National Immigration Law Center complained of “hatemongering and intimidation.”
“Federal courts, including the Supreme Court, have consistently held that the federal government has the sole authority to regulate immigration policy,” the organization said. “The Texas Legislature is wrong to have passed it, and Governor Abbott will be wrong if he signs it.
“We call on Texas to abandon this cruel, illegal scheme and recognize that immigrants make Texas and our nation stronger.”
Readers will quickly dismiss that last bit of sentimental and deceitful rubbish. Legal immigrants do indeed “make Texas and our nation stronger,” but illegal immigrants do not.
The first line of that passage, however, does pose an apparent problem.
As The Texas Tribune noted, federal courts have ruled that only the federal government may enforce immigration laws. In 2012, for instance, the U.S. Supreme Court ruled that local police lacked the authority to arrest people based on their immigration status.
Here we have an issue that involves the very nature of our constitutional structure.
On one hand, when the federal government operates within its legitimate constitutional sphere, states may not nullify federal law. Americans settled that question nearly 200 years ago.
On the other hand, what happens when the federal government acts outside its constitutional sphere? James Madison — long recognized as the father of the U.S. Constitution — wrote in 1798 and again in 1800 that the states have an obligation to protect their citizens when the federal government tramples their liberties.
Texas police may not enforce federal immigration law. No one seriously doubts as much.
The people of Texas, however, have sovereign authority. They cannot pass a law that conflicts with federal law and still remain members of the Union. They can, however, pass a law to protect themselves — a law, in fact, that does not conflict with federal laws in any way — when federal officials such as President Joe Biden and Secretary of Homeland Security Alejandro Mayorkas criminally refuse to enforce federal laws.
Americans must understand that the federal government has no sovereignty whatsoever. Its only legitimate authority comes directly from the sovereign people of the United States.
Likewise — and here we cite Madison’s lifelong friend and political ally, Thomas Jefferson — federal courts do not have ultimate authority. They alone cannot tell us what the Constitution means. Only we — the sovereign people — have that power.
If the judiciary were to have this kind of authority, Jefferson wrote in 1819, “then indeed is our constitution a compleat felo de se” — that is, a “felon against itself,” an agent of suicide.
The people of Texas must not violate federal law. And they must not trample the rights and liberties of their fellow citizens. But they may exercise their sovereign authority to protect themselves. And they may do so without seeking permission from any court.
