Politics
An old Scalia dissent is driving Texas' immigration dispute with Biden
For more than a century, immigration and border enforcement have been seen as falling exclusively under federal control, and when states tried to exert a greater role, courts shut them down.
Texas is now moving to challenge that legal interpretation before the U.S. Supreme Court’s current conservative majority. And the outcome may turn on a lone 2012 dissent by the late conservative Justice Antonin Scalia.
Scalia insisted it was a myth that the Constitution gave the federal government exclusive power over immigration. He noted that most federal immigration laws did not come into existence until the 1880s, and that before that, states put their own limits on who could enter.
He referred to the U.S. as “an indivisible union of sovereign states” and said lax federal enforcement of immigration laws deprives “sovereign” states like Texas and Arizona of “the power to exclude … people who have no right to be there. … The states have the right to protect their borders against foreign nationals.”
Moreover, he argued that even when federal law supersedes state law, that shouldn’t prevent states from participating in enforcement of the federal law.
No other justice signed on to Scalia’s opinion; his view of “sovereign” states was seen by many as extreme and outdated.
But that dissent is now fueling the immigration and border control dispute between Texas and the Biden administration.
And if today’s more conservative Supreme Court adopts Scalia’s view, it could redefine the balance of power between federal government and the states, and clear the way for aggressive state enforcement of immigration laws.
Last week offered a preview. In a 5-4 vote, the justices sided with President Biden’s Homeland Security Department and set aside an appeals court order that prohibited U.S. Border Patrol agents from cutting through razor wire that had been installed by the state of Texas along the Rio Grande and that was blocking federal agents from patrolling the area.
But the one-line order was limited, and said nothing about Texas’ authority to block migrants from entering the state, including with razor wire along the river.
Texas Gov. Greg Abbott, citing Scalia’s 2012 dissent, vowed to press the legal fight.
“The federal government has broken the compact between the United States and the States,” the Republican governor said in a statement released after last week’s Supreme Court order. “The Executive Branch of the United States has a constitutional duty to enforce federal laws protecting states, including immigration laws on the books right now. President Biden has refused to enforce those laws and has even violated them.”
A day later, 25 Republican governors released a statement saying that they “stand in solidarity” with Abbott and Texas in using “every tool and strategy, including razor wire fences, to secure the border.”
Next week, the 5th U.S. Circuit Court of Appeals in New Orleans will hear arguments in the dispute over razor wire. If Texas wins there, the case will likely return to the Supreme Court.
But a far more significant case is headed there soon.
In December, Abbott signed into law SB 4, a measure authorizing police and judges in Texas to arrest,detain and deport migrants who are suspected of crossing the border illegally.
The measure is seen as a direct challenge to the 2012 Supreme Court decision that struck down a similar law in the case of Arizona vs. United States. It was that decision that prompted Scalia’s dissent.
“This is a frontal assault on the federal primacy in immigration enforcement, and it’s definitely going to the Supreme Court,” said Cornell law professor Stephen Yale-Loehr.
Thomas Saenz, president of the Mexican American Legal Defense and Educational Fund, called the Texas measure “the most extreme encroachment on exclusive federal authority that we have seen in at least 50 years,” saying that “it goes beyond California’s Prop. 187 and Arizona’s SB 1070 by seeking to set up the state’s own system of immigration courts and enforced deportation orders.”
He warned: “If that were the law, we could have 50 different immigration systems in this country.”
But he predicted that not even a Supreme Court as conservative as today’s would uphold the Texas law.
“This is essentially political theater for Abbott. It will get attention for him and inspire the base,” he said.
In early January, the Biden administration filed a lawsuit in Austin, the state’s capital, seeking to block the Texas law from taking effect on March 5 as planned.
“SB 4 is clearly unconstitutional,” outgoing Associate U.S. Atty. Gen. Vanita Gupta said at the time. “Under the Supremacy Clause of the Constitution and longstanding Supreme Court precedent, states cannot adopt immigration laws that interfere with the framework enacted by Congress.”
The lawsuit says that it seeks to preserve the U.S. government’s “exclusive authority … to regulate the entry and removal of non-citizens,” and that the nation “must speak with one voice in immigration matters.”
Immigration rights advocates have also voiced alarm about the Texas measure, saying it could be used against vast numbers of noncitizens who live far from the border.
“This law will rupture Texas communities,” said Adriana Piñon, legal director at the American Civil Liberties Union of Texas, which has also sued to block the law. “It will strip people of their rights under federal law with devastating consequences: Families may be separated, more people may live in fear of law enforcement, and migrants may have a harder time fully integrating into our communities.”
The Constitution establishes U.S. laws as “the supreme law of the land,” which states are bound to follow.
Scalia did not contest that principle, and agreed states that may not adopt or enforce laws that directly conflict with immigration laws adopted by Congress.
“I accept as a given that state regulation is excluded by the Constitution when (1) it has been prohibited by a valid federal law, or (2) it conflicts with federal regulation — when, for example, it admits those whom federal regulation would exclude, or excludes those whom federal regulation would admit,” he wrote.
But he disagreed with the court’s majority, which held that states like Arizona may not use their police to enforce immigration laws in ways that go beyond federal policy.
Writing for the court, then-Justice Anthony M. Kennedy said that the “national government has significant power to regulate immigration,” and that the “states may not pursue policies that undermine federal law.”
The justices blocked three parts of the Arizona law, including provisions that made it a state offense for an “unauthorized alien” to apply for work or to fail to carry registration documents.
But the court stopped short of blocking a fourth provision, seen as highly controversial at the time, that said police may seek to “determine the immigration status” of any person they stop, detain or arrest if there is reason to believe the person is “unlawfully present in the United States.”
To many, the ruling on Arizona’s law stood as a warning that conservative states may not pursue immigration enforcement that goes beyond the policies and priorities set by the administration in Washington.
That understanding is now being put to the test.
Chief Justice John G. Roberts Jr., whose votes are largely conservative, joined Kennedy in the Arizona case, and sided last week with the Biden administration in the Texas dispute over razor wire.
Justice Amy Coney Barrett, a conservative, cast a key vote for the majority in the Texas case, along with liberal Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.
Justices Clarence Thomas and Samuel A. Alito Jr., both conservatives, dissented in the 2012 Arizona case — though they did not join Scalia’s statement of dissent — and did the same last week in the Texas case, along with fellow conservative Justices Neil M. Gorsuch and Brett M. Kavanaugh.
If a federal judge in Austin or the 5th Circuit refuses to block SB 4, the justices are likely to face another emergency appeal from the Biden administration by the end of this month.
Representative Tom Cole, the Oklahoma Republican who leads the Appropriations Committee and is a longtime party political strategist, observed on Wednesday that congressional majorities are typically lost either through overreach or dysfunction.
Congressional Republicans seem to be opting for the latter.
“Right now we don’t look as functional as we need to look,” Mr. Cole acknowledged as the House and Senate strained to get some of their most basic work done in the face of bitter internal divisions and increased finger-pointing among Republicans.
With midterm elections approaching and control of both chambers at real risk, Republicans are struggling to pass essential legislation, let alone the political messaging bills typical of the months running up to Election Day.
The House floor was frozen on Tuesday and ground to a standstill for several hours on Wednesday as Republican leaders pleaded for votes and cut side deals. Two of those hours were spent laboring to win a preliminary vote to begin debate on a series of bills — what used to be considered a routine step until the current Republican majority assumed power and rank-and-file lawmakers, noting their party’s vanishingly slim margin of control, latched on to such moments as leverage.
Now the routine step has become an extraordinary travail for Speaker Mike Johnson, who is constantly toiling to please various Republican factions, cognizant that a misstep, or any reliance on Democratic votes to pass bills, could draw a challenge that could cost him his job.
“We live in a period where leaders are afraid of their members, and members are afraid of their voters,” said Mr. Cole.
On Wednesday, heated discussions were prevalent on the Republican side of the aisle. Lawmakers shouted at each other across the House floor. Mr. Johnson huddled with holdouts and defectors, beseeching them to get in line. Deals were cut, then reneged on and renegotiated, and even the G.O.P. budget plan — normally a unifying measure — stalled for more than five hours as unrelated disputes were hashed out behind closed doors.
“Guys, this is why they say lawmaking is like watching sausage be made,” a beleaguered Mr. Johnson told reporters at the Capitol on Wednesday evening.
Some Republicans even accused their colleagues of being in the pocket of the pesticide industry — the sort of pointed critique usually aimed at members of the opposing party if made at all, since lawmakers do not like to remind voters about the influence of political contributions.
Other Republicans shrugged off the escalating political combat as the way business is done these days.
“It should be a fist fight on everything,” said Representative Tim Burchett, Republican of Tennessee. “It shouldn’t be easy.”
But the congressional temperature was rising high enough that one former Republican House member from Texas, Mayra Flores, urged her ex-colleagues to take it behind closed doors.
“There is no reason to turn every issue into a public spectacle online,” Ms. Flores wrote on X, saying she was “honestly embarrassed” by the conduct of some of her former colleagues. “The country is facing real challenges, and constant public infighting only makes the work harder.”
Republican leaders, trying to break a logjam that threatened to derail their entire immediate agenda, relented on Wednesday and agreed to rework a major farm policy measure that is historically one of the more popular bills before Congress. But its path remained unclear because of a dispute over ethanol tax credits and opposition from a handful of Republican lawmakers who opposed a liability shield for pesticide producers that has outraged the Make America Healthy Again movement.
“This is causing cancer and it is making people sick,” Representative Anna Paulina Luna, Republican of Florida, said as she urged reporters to investigate members of the Agriculture Committee and the donations they get from pesticide producers.
After sundown, Republicans got stuck on the budget resolution providing the framework for $70 billion in funding for President Trump’s immigration crackdown as they tried to quell protests over Mr. Johnson’s handling of the farm bill. The budget outline finally passed on a party-line vote, but it was a mark of the G.O.P. difficulties that a surge of money for tough immigration enforcement embraced by nearly all Republicans was almost sidelined by the farm bill furor.
The House voted to extend a surveillance law that the intelligence community says is critical to identifying potential terrorist attacks, but the Senate almost immediately said the House bill was unacceptable and that it would be sending back an alternative with barely 24 hours left before the statute was set to lapse.
What lawmakers were not talking about was how to break loose bipartisan legislation, passed in the Senate but stalled in the House, that would fund most of the Department of Homeland Security after a more than 70-day shutdown, as the administration warned that funding for paying workers was again about to run out.
Top House Republicans blamed Senate Republican leaders for mishandling the legislation and then trying to jam it down the throat of the House. They said the fact that the measure explicitly says that “zero” dollars should be expended for Immigration and Customs Enforcement and border patrol is untenable for some Republicans, who fear they could be attacked for defunding the police.
Mr. Cole said the House wants changes, which could again slow the bill in the Senate.
“All of this is created by bad management in the Senate and by not being open and transparent with us in the House,” he said.
But Senate Republicans believe they had a deal with Mr. Johnson to pass the spending bill weeks ago, when he publicly endorsed it.
The standoff has tested the patience of the usually even-tempered Senator John Thune, Republican of South Dakota and the majority leader, who reacted testily this week when Mr. Johnson suggested that his chamber wanted unspecified modifications.
“You’d have to figure out what they were doing and whether or not it materially affects in any way the bill that we passed not once, but twice, by unanimous consent,” Mr. Thune said, noting that he and Mr. Johnson jointly announced an agreement to pass the funding legislation on April 1, and that it still had not reached the House floor.
Should it get there, it would likely attract sufficient Democratic support to offset any Republican defections. But that is one of the reasons Mr. Johnson has been reluctant to move forward, since turning to Democrats to help pass legislation can upset his right wing and lead to a challenge to his leadership.
As he assessed the situation, Mr. Cole said that splintered Republicans had a clear choice: put aside their differences and move ahead, or face the consequences.
“You can either be part of a functional majority and get almost everything you want,” he said, “or you can hold out and get nothing and be in the minority next time.”
Megan Mineiro and Michael Gold contributed reporting.
Politics
House Republicans unlock reconciliation process to fund ICE and Border Patrol without Democrats
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The House of Representatives approved a budget blueprint funding immigration enforcement for the rest of President Donald Trump’s term over Democrats’ fierce objections on Wednesday.
Lawmakers voted 215-211 along party lines to take a critical step toward ending the record-breaking Department of Homeland Security funding lapse that began on Feb. 14.
Rep. Kevin Kiley, I-Calif., who caucuses with Republicans, voted present. House Democrats united in opposition to the immigration enforcement measure while every Republican present voted in support.
House Speaker Mike Johnson, R-La., could spare just a handful of defections with Republicans’ slim majority.
REPUBLICANS CAN FUND ICE FOR AN ENTIRE DECADE WITHOUT A SINGLE DEM VOTE: SEN CRUZ
ICE agents depart the Bishop Henry Whipple Federal Building on Feb. 4, 2026, in Minneapolis. (John Moore/Getty Images)
The House’s approval of the Senate-passed budget framework unlocks the partisan budget reconciliation process, which Republicans are using to fund Immigration and Customs Enforcement (ICE) and Customs and Border Protection without support from congressional Democrats.
Trump has given Republicans a June 1 deadline to send a budget reconciliation bill to his desk, giving GOP leadership little room for error.
“We have a real sense of urgency about getting this done,” Johnson told Fox News Wednesday.
The successful vote came after more than a dozen GOP lawmakers ranging from conservatives to farm-state and Midwestern Republicans withheld their votes over concerns unrelated to the budget framework.
Republican leadership held the vote open for more than five hours to win over the numerous holdouts and six GOP lawmakers who voted “no” before flipping to “yes.”
Those lawmakers included Reps. Max Miller, R-Ohio, Andy Harris, R-Md., Victoria Spartz, R-Ind., Harriet Hageman, R-Wyo., Andrew Clyde, R-Ga., and Michael Cloud, R-Texas.
“This is why they say lawmaking is like watching sausage be made,” Johnson told reporters Wednesday. “That’s what this is, but we’ll get it done.”
The budget resolution teeing up funding for Trump’s immigration agenda is just one piece of Republicans’ DHS funding strategy.
SENATE BORDER BUDGET TRIUMPHS AFTER ALL-NIGHT SESSION WHILE TRUMP-BACKED HOUSE BILL LAGS
House GOP leadership has not specified when it plans to take up a Senate-passed measure funding the rest of the department.
Senate Majority Leader John Thune, R-S.D., and House Speaker Mike Johnson, R-La., agreed on a two-track approach to fund DHS by steering around Democratic opposition weeks ago. But Johnson has so far declined to put the Senate’s partial DHS bill on the House floor over concerns that it zeroes out funding for immigration enforcement.
Johnson said earlier this week that some “modifications” to the measure may be necessary but has not gone into detail about specific changes.
The White House on Tuesday sent Hill offices an internal memo, obtained by Fox News Digital, urging passage of the Senate’s partial DHS bill, raising the pressure on Johnson to act.
House Speaker Mike Johnson, R-La., successfully steered a budget blueprint through the House of Representatives teeing up three years of funding for President Donald Trump’s immigration enforcement agenda on Wednesday. (Valerie Plesch/Bloomberg)
Many rank-and-file House Republicans want ICE and the Border Patrol funded before the rest of the department, which could mean a delay for several more weeks.
“I think that there’s a serious problem with the bill in that it zeroes out, ICE and CBP,” Rep. Eric Burlison, a member of the conservative House Freedom Caucus, told Fox News. “It’s one thing to not do the funding, but it’s a whole other thing to put zeros in the bill.”
“I know that the speaker’s working on making sure that we have all the assurances and even maybe the cash in hand in terms of reconciliation being wrapped up, finalized before we take the 95% of the rest of Homeland Security,” House Budget Committee Chairman Jodey Arrington, R-Texas, said.
Meanwhile, the White House is warning that it will be short on funds to pay the department’s hundreds of thousands of employees beginning in May.
“If this funding is exhausted, the Administration will be unable to pay DHS personnel beginning in May, which will once again unleash havoc on air travel, leave critical law enforcement officers—including our brave Secret Service agents—and the Coast Guard without paychecks, and jeopardize national security,” the White House memo published Tuesday states.
House Republicans’ approval of the Senate blueprint also effectively shuts the door on adding other GOP priorities to the budget package. Some GOP lawmakers had floated adding affordability-focused provisions, defense supplemental funding and the SAVE America Act to the bill.
House Budget Committee Chairman Jodey Arrington, R-Texas, said Wednesday that the House of Representatives is unlikely to pass the Senate’s partial DHS bill until more progress is made toward funding immigration enforcement. (Alex Wroblewski/Bloomberg)
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GOP leadership had argued for weeks that a larger bill risked derailing the budget reconciliation process.
“We’re focused on funding Homeland Security and stopping the Democrat shutdown and, in particular, using reconciliation to fund ICE and CBP because Democrats refused to fund it,” Arrington said. “Everything else is not germane to this conversation.”
Politics
Cole Allen case reveals Secret Service failures that could have led to tragedy at D.C. gala
According to Acting Atty. Gen. Todd Blanche and other top administration officials, the U.S. Secret Service did a fine job protecting President Trump and Cabinet members from the gunman who breached the White House Correspondents’ Assn. dinner Saturday.
“That horrible act was stopped because of the courage and professionalism of law enforcement — the officers who responded without hesitation and did their jobs as they were trained to do,” Blanche said Monday.
However, according to a detailed accounting filed Wednesday by federal prosecutors in the criminal case against suspect Cole Tomas Allen, the performance of the nation’s preeminent protection agency was marred by inattentiveness and misfires and saved by “extraordinary good fortune” and the gunman falling to the ground.
“The defendant, armed with a 12-gauge shotgun, a .38 caliber pistol, two knives, four daggers, and enough ammunition to take dozens of lives, was apprehended by [Secret Service] officers mere feet away from the ballroom where his primary target was located, along with other members of the Cabinet,” prosecutors wrote Wednesday, in a filing arguing for Allen to be held in detention pending trial on one charge of trying to kill the president and two firearms charges.
Contradicting a prior claim by Blanche that officers had “promptly tackled and detained” Allen, prosecutors wrote that the 31-year-old tutor from Torrance simply “fell to the ground” after blowing past a team of agents just two open flights of stairs from the ballroom.
They wrote that one officer fired at Allen five times, but never hit him.
The same officer saw Allen fire his shotgun “in the direction of the stairs leading down to the ballroom,” prosecutors wrote, and officers later discovered “one spent cartridge in the barrel and eight unfired cartridges in the magazine tube.”
Prosecutors said nothing about the Secret Service officer who Blanche said was shot in his ballistic vest during the incident — adding to speculation that the officer may have been shot not by Allen, but by a fellow officer, or not at all.
Agency critiqued before
In all, the court filing brought further into focus a chaotic Secret Service response that appeared flawed from the start, including in a video Trump posted shortly after the incident in which agents appeared to be idling around an unobstructed entrance when Allen ran past them.
It added to concerns that law enforcement, security experts and members of Congress had raised about the performance of an agency that has been repeatedly called on to improve after previous attempts on Trump’s life. At a 2024 campaign rally in Butler, Pa., a gunman fired a bullet that grazed Trump’s ear, and that same year, another assailant prepared to shoot him from the unsecured perimeter of a Florida golf course.
Robert D’Amico, a former FBI deputy chief of operations for hostage rescue teams who is now a security consultant, said the security failures he saw in the Secret Service’s preparation for Saturday’s dinner — including its failure to set up basic barriers to prevent people from sprinting into the secured area — were stunning, especially given the past threats and the fact the nation is at war with Iran.
“It’s for a person like Trump, who’s had two assassination attempts before and is at war with Iran, which has terrorist training and proxies up, and you still don’t have the basics?” D’Amico said. “It’s unfathomable.”
Other concerns have been voiced by members of Congress, including Republicans.
The House Oversight Committee has requested a briefing from the Secret Service, and Sen. Josh Hawley (R-Mo.) has called for a hearing before the Senate Homeland Security and Governmental Affairs Committee, which also investigated the Butler incident.
In a letter urging the hearing, Hawley said the latest incident “raises questions about presidential security arrangements, potential resource needs, and the degree to which reforms previously proposed by Congress have been adopted.”
House Speaker Mike Johnson (R-La.) told Fox News that from “a layman’s perspective,” event security “looked a little lax in terms of getting into the building,” and that it “doesn’t sound like it was sufficient.”
Sean M. Curran, director of the Secret Service, has been on Capitol Hill in recent days briefing lawmakers.
He told CBS News that agents did a “great job,” but also that the incident remains under review. White House Press Secretary Karoline Leavitt has said that White House Chief of Staff Susie Wiles would be leading discussions on potential updates to Secret Service plans for securing the president.
Fear of graver threats
Blanche has argued that proof of the Secret Service’s effectiveness at the press gala was in the result: Allen was stopped, Trump and other officials were unharmed and no one was killed, despite Allen’s alleged intent.
However, the concerns being raised have to do with the vulnerabilities that were exposed as much as those that were exploited.
Because the dinner was not designated a major “national special security event” — such as a political convention — there were no trained counterassault agents on standby to prevent a breach or to take down a person with a weapon, officials have said.
Law enforcement experts said that was clearly a mistake given so many top officials — Trump, Johnson, Vice President JD Vance, Secretary of State Marco Rubio, Treasury Secretary Scott Bessent and Defense Secretary Pete Hegseth, among others — were in the room.
Such a gathering could have been targeted by foreign adversaries or others with far more experience, less regard for human life and much greater firepower than Allen, experts said.
“Most of my military friends are all saying the same thing,” said D’Amico, who is also a former infantry platoon commander in the U.S. Marines. “If you had had a team of three or four [gunmen], they would have gotten to [Trump].’”
In the initial criminal complaint against Allen, prosecutors included the text of an email Allen sent to family just as he was preparing to rush the security perimeter, in which he allegedly wrote that he had chosen to use buckshot in order to “minimize casualties” and prevent bystanders from being wounded by more powerful bullets penetrating walls.
He also allegedly wrote that he was willing to “go through most everyone” at the event to get to top administration officials, but that guests and hotel staff were “not targets at all.”
In Wednesday’s filing, prosecutors describe Allen’s actions as “premeditated, violent, and calculated to cause death,” and say he was “laden with weapons” as he breached security. But none of those weapons included assault-style rifles that can fire bullets rapidly and have been used to kill civilians in mass shootings across the country for years.
The filing described Allen — a Caltech graduate and high school tutor — not as some trained tactical expert, but as an ideologue who spent part of his Amtrak journey from California to Washington waxing poetic about the landscape around him, describing Pennsylvania’s woods as “vast fairy lands filled with tiny trickling creeks in spring.”
Could have been worse
D’Amico said he and other Marines learned early on in Iraq that entrances to secured locations have to be designed in a “serpentine” fashion, forcing anyone approaching to move more slowly through the area and giving security officers more time to assess their intentions. And at an event the size of the correspondents’ dinner, with so many top officials gathered in a public hotel, you would want to make entrances “even more difficult.”
And yet no barriers seemed to be in place at the event, he said — something anyone trained more than Allen could have capitalized on.
“If they just had come through in a team of three or four who were coordinated and trained, there absolutely would have been penetration into the ballroom,” D’Amico said. “It would have been a gunfight.”
Allen himself questioned the security at the event, according to court records, allegedly writing that he had walked into the Washington Hilton with multiple weapons and no one considered “the possibility that I could be a threat.”
He wrote that if he “was an Iranian agent, instead of an American citizen,” he “could have brought a damn Ma Deuce in here and no one would have noticed” — referring to a powerful machine gun.
“It is fortunate he was only armed with what he had,” said Ed Obayashi, a California law enforcement expert on use of force.
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