INTERVIEW: Texas Hold ’Em

By Reuvain Borchardt

Ilya Somin discusses a Jan. 22 Supreme Court order allowing the federal government to cut barbed wire that Texas had placed on parts of its border with Mexico in an attempt to keep out illegal immigrants.

Somin is the B. Kenneth Simon Chair in Constitutional Studies at the Cato Institute, and a professor of law at the Antonin Scalia Law School at George Mason University. His research focuses on migration rights, federalism, constitutional law, property law, and democratic theory.

His writings have appeared in numerous scholarly journals, and have been cited in decisions by the U.S. Supreme Court, state and federal courts, and the Supreme Court of Israel.

How did this case arise?

The background is that the state of Texas has been trying various expedients to restrict immigration, some of which go beyond what the federal government is doing. One of them is setting up barbed concertina wire on a small segment of the border, which prevented federal CBP [Customs and Border Protection] agents from coming in and processing migrants. So the federal agents began to try to cut the wire, and Texas went to court and got an injunction preventing federal agents from cutting those wires. Now, the U.S. Supreme Court has intervened to lift that injunction, so federal agents can now go in and cut the wire and get to migrants crossing the border in this area.

That’s where we are now. But because this was on the so called “shadow docket” of the Supreme Court, it was just an order issued until the case is heard on the merits; there’s no explanation of the Supreme Court’s reasoning. And it’s not clear yet whether the Supreme Court will take any kind of further action to resolve substantive legal issues in the case even after the lower court hears it. 

That’s where we are now in terms of the situation with this wire. Of course, for many people, there’s a broader concern, both about the issue of immigration policy involved and about the potential for federal versus state confrontation, given that Texas has said it is going to continue to put up the wire. Technically they are not violating the decision of the Supreme Court because that decision doesn’t say Texas can’t put up wire; the decision just dissolved the lower court injunction that prevented federal agents from going in and cutting it. But if Texas law-enforcement personnel or National Guard or whoever else tries to block federal CBP officials from going in and cutting the wire, that would potentially be a serious problem, and a serious federal-state confrontation.

So as it stands now, Texas may put up the wire, but CBP may cut it.

More or less. If you think that sounds silly, I kind of agree, but it’s because of the procedural posture where the Supreme Court did not issue a ruling on the merits of the case. They just overturned the injunction instituted by the lower court that had prevented federal agents from cutting the wire.

The lower court has not issued a ruling on the merits yet, either. They issued the injunction against the feds cutting the wire, and the Supreme Court now overturned that injunction, but the actual case on the merits still has to be heard in the lower court.

That is correct. 

But one of the factors in deciding whether a preliminary injunction should be issued is whether the side asking for the injunction is likely to succeed on the merits. So when the lower court issued the preliminary injunction, they were sending a signal that they thought Texas was likely to prevail on the merits.

But when the Supreme Court overturned that injunction, doesn’t that indicate they believe the feds are likely to prevail on the merits? 

To some extent yes, but it’s less clear, because there are multiple preliminary-injunction factors. So you could argue that the Supreme Court majority thought that Texas fell short on one of the other factors in assessing the preliminary injunction, such as whether it would be likely to cause irreparable harm to either side.

In this case, two conservatives — Justice Barrett and Chief Justice Roberts — joined the three liberals in the majority. If the case on the merits reaches the Supreme Court, might one of them flip and join the conservatives for a majority the other way?

It’s hard to say for certain, because we don’t know why Barrett and Roberts chose to side with the liberals in this case. It could be because they think the Texas position is bad on the merits — and I think Texas’ position does have significant problems on the merits — but it could be for another reason. We also, of course, don’t yet know whether the Supreme Court will actually hear this case on the merits after there is a ruling in the lower court. 

Texas Governor Abbott is against illegal immigration, which he believes the federal government is not doing enough to stop, and he is trying to take things into his own hands. What was the federal government’s argument here for why Texas shouldn’t put up the wire? 

The federal government has a number of legal arguments here. One is that dealing with immigration, generally speaking, is a federal role, at least in our current interpretation of the Constitution that has been dominant in the Supreme Court now for 135 years. I’ve been among those who have argued that that is not what was supposed to be the case under the original meaning of the Constitution, but it certainly is the case under current Supreme Court precedent. In addition, CBP has specific statutory responsibilities; they are supposed to process migrants and deal with the situation at the border. And so they argued that Texas is getting in the way of the federal government’s constitutional prerogative and also its statutory responsibilities under federal immigration law.

Who do you side with in this case?

Under current Supreme Court precedent and statute, I think the federal government is right, though as a matter of original meaning of the Constitution things are much more complicated. And to get back to that original meeting, we would have to overturn a good deal of Supreme Court precedent, which, ironically, most conservatives would not want to overturn. Immigration-restrictionist conservatives, which are most conservatives, would not want a situation which I think should exist under the original meaning of the Constitution, where the federal government has very little power to restrict immigration, but states have somewhat more power than they do now — because the upshot of that is more conservative states would have some ability to keep immigrants out, but more liberal states would be able to let in almost any immigrants.

You could also have the reverse, where, say, Trump’s in office, and a liberal sanctuary city or state says it’s not going to cooperate with him on illegal immigration.

Those cases are different, because there, New York, California, and so on, are not saying they’re going to actively impede the federal government; they’re just saying they’re not going to help the federal government. They have the right not to help under Supreme Court precedent; ironically, those precedents are primarily the work of conservative Supreme Court justices and were opposed at the time by liberals. 

As a substantive matter, these sanctuary-city policies matter more than this Texas barbed wire, which is only over a small stretch of the border and has much less effect. But as a constitutional or legal matter, impeding the federal government and its officers is a much bigger legal deal than simply saying the feds have to do their own work and we’re just not going to help them. 

This concertina wire wasn’t simply keeping the migrants out; it was also not allowing the Border Patrol agents to reach the migrants and process them, or rescue them if they were in distress. 

Right.

As a humanitarian and moral matter, I think impeding migrants is a bigger deal than impeding federal officials. But as a legal matter, the reason Texas has gotten into at least some hot water here is because they’ve been impeding the federal agents and not merely the migrants.

Texas would argue that if the migrants know that they’ll be prevented from entering the U.S., they won’t risk these dangerous crossings in the first place. 

They do say that. Whether that’s true as a policy matter or not, I don’t think that it’s a dispositive legal issue, because it’s still the case that they’re impeding federal officials. In addition, obviously, the realistic outcome of blocking a small stretch of the border is that the migrants will just try to cross elsewhere. And given the enormous length of the border, it would be virtually impossible to block all or even most of it.

More broadly, while this could be viewed as a simple question of state versus federal rights, it is about the issue of immigration. Do you feel that justices honestly just follow whatever their views are on the issue of federalism, or are they heavily influenced by their view of the underlying issue?

I think perhaps it’s some of both. It would be naive to imagine that Supreme Court justices, either liberal or conservative, are completely immune to all political bias. On the other hand, this Supreme Court, with its conservative majority, has given Biden significant victories in several immigration cases before: the “remain in Mexico” case; and a case just this past year about immigration priorities when they ruled 8-1 against Texas and other conservative states’ efforts to strike down the Biden administration directives about prioritization of undocumented immigrants for deportation. And in lower-court litigation on sanctuary cities, there are many cases where conservative lower court judges ruled in favor of sanctuary cities on federalism principles. So I think the broader legal issues do matter, and I don’t think justices will simply rule based on whether they like or dislike immigration, or they like or dislike the Republican Party. That said, judges are human beings like the rest of us, and they may not be able to completely control all their biases. At the same time, there are many examples of conservative judges, both on lower courts and the Supreme Court, voting against Republican positions or conservative positions on immigration cases and some other kinds of cases as well. So it’s not simply a matter of conservative judges voting the conservative policy and liberal judges voting the liberal policy.

Speaking of policy, let’s discuss the actual policy issue of immigration. Where do you stand on America’s immigration policy?

I wrote a book called Free to Move: Foot Voting, Migration, and Political Freedom. I am for open borders.

The Republicans accuse the Democrats of wanting “open borders.” That is not true. The Democrats, pretty obviously, are not for open borders. But I am. That is, I believe that we should replace the current system, where there’s a presumption that anybody who’s not already a U.S. citizen or a close relative of one must be kept out, with the opposite presumption of freedom of movement, and letting people live and work where they wish. I think that would be great for helping millions of people escape poverty and oppression, and it would also be great for the American economy and society, as immigrants contribute enormously to our economic growth, innovation, science, and many other things.

I would add also that as a policy matter, these problems that we have at the border are mostly the result of immigration restrictions. There are millions of people who are suffering in horrible conditions in their countries of origin, including under communist regimes like Cuba and Venezuela, that the Republicans in other contexts are happy to condemn. And because most of those people have little or no chance of getting in legally, there is instead a black market of them getting in illegally — just like when we had alcohol prohibition, you had alcohol smuggling across U.S. borders, because it was difficult or impossible to get alcohol legally. So, saying, “We’re going to combat illegal migration by making entry more difficult,” is a little bit like saying, “We’re going to combat alcohol smuggling by making it harder to get alcohol legally.” Clearly, Al Capone and others like him were products of the alcohol Prohibition regime, and that kind of organized crime diminished massively after Prohibition was abolished. Similarly, if it was easy for most migrants to enter legally, we would have little or no problems of congestion or violence or smuggling at the border.

Would you require health and security screenings?

Only in cases where there’s some kind of strong evidence that there’s a genuine risk, like there’s an epidemic going on in the country they came from, or we have specific evidence that a particular person is a security threat or planning acts of terrorism, espionage, and so on. But in general, the regime should be similar to what it is if you move from California to Texas. If we have evidence that somebody’s going from California to Texas to commit a crime, then by all means, detain them or investigate. But otherwise, the presumption is that people could move around freely. Maybe you could say that they should register with U.S. authorities, so later we can then collect taxes and things of that sort. 

But the overall idea should be a presumption in favor of freedom, rather than a presumption in favor of exclusion.

Would it matter what country they came from? For example, would you treat migrants from South America the same as those from the Middle East?

Not as a general presumption. But if there’s some kind of strong evidence that some large proportion of potential entrants from a given country are dangerous, maybe things would be different. But I would add that even for countries in the Middle East, the actual evidence on the incidence of terrorism among migrants from those countries is extremely low. It’s actually not even higher than the incidence among native-born Americans.

What about the argument conservatives make that we can’t have open borders and a welfare state? 

My answer is twofold. 

One is, if you look at the evidence on immigrants who have come in the last several decades, the overwhelming majority are net contributors to the public fisc rather than net takers, and therefore, for the most part, this is a non-problem. But to the extent that it is a problem, the solution, which we already practice to some extent under a 1996 Welfare Reform Act, is to limit access to welfare benefits, rather than to limit freedom of movement. 

I would add also that if you’re going to argue that it is justified to impose severe restrictions on people’s liberty to protect against them potentially claiming welfare benefits, that has radical implications not just for immigration, but for a lot of other things. For instance, you could similarly argue that we should restrict poor people’s ability to have children because the children of poor people are, on average, more likely to get welfare benefits than the children of wealthier people. Or that we should restrict people moving from West Virginia to where I live in Virginia, because West Virginia is poorer, so on average, a West Virginian may be more likely to end up on welfare than a native-born Virginian, and so forth. And you could also say we should restrict people’s diets and drug use and alcohol use because if they overuse these things they are more likely to get sick and to use health care and welfare benefits. If you say that you can restrict any form of behavior and exercise of your liberty if it increases the likelihood that you’ll be on welfare, that’s a recipe for government control over most aspects of most people’s lives. 

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rborchardt@hamodia.com