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No other justice signed on to Scalia’s opinion; his view of “sovereign” states was seen by many as extreme and outdated.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.
Politics
Marjorie Taylor Greene criticizes Trump’s meetings with Zelenskyy, Netanyahu: ‘Can we just do America?’
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Rep. Marjorie Taylor Greene, R-Ga., on Sunday called for President Trump to only focus on America’s needs as the president meets with Ukrainian President Volodymyr Zelenskyy and Israeli Prime Minister Benjamin Netanyahu.
The president has been heavily involved in the Russia-Ukraine and Israel-Hamas conflicts since returning to the White House.
Trump met with Zelenskyy on Sunday at Mar-a-Lago to discuss a peace plan aimed at ending the Russia-Ukraine war that began with an invasion by Moscow in February 2022.
Netanyahu arrived in Florida on Sunday ahead of their scheduled meeting on Monday at Trump’s estate to address Israel’s conflicts in the Middle East. It will be the sixth meeting of the year between the two leaders.
TRUMP ZELENSKYY SAY UKRAINE PEACE DEAL CLOSE BUT ‘THORNY ISSUES’ REMAIN AFTER FLORIDA TALKS
Rep. Marjorie Taylor Greene criticized President Donald Trump’s meetings with Ukrainian President Volodymyr Zelenskyy and Israeli Prime Minister Benjamin Netanyahu. (Anna Moneymaker/Getty Images)
Greene, responding to Trump’s meeting with Zelenskyy and Netanyahu, said that the Trump administration should address the needs of Americans rather than becoming further involved in global conflicts.
“Zelensky today. Netanyahu tomorrow,” she wrote on X.
President Donald Trump welcomes Ukrainian President Volodymyr Zelenskyy at his Mar-a-Lago residence in Palm Beach, Florida. (Jim WATSON / AFP via Getty Images)
“Can we just do America?” the congresswoman continued.
The congresswoman has been a vocal critic of supplying U.S. military aid to foreign countries amid the conflicts in Europe and the Middle East.
She has also referred to Zelenskyy as “a dictator who canceled elections” and labeled Israel’s military campaign in Gaza as a genocide and humanitarian crisis.
ZELENSKYY READY TO PRESENT NEW PEACE PROPOSALS TO US AND RUSSIA AFTER WORKING WITH EUROPEAN TALKS
Rep. Marjorie Taylor Greene and President Donald Trump had a public feud in recent months. (Getty Images)
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This comes after Taylor Greene, who is set to resign from the House in January, had a public spat with Trump over the past few months as Trump took issue with the Georgia Republican’s push to release documents related to the investigations into deceased sex predator Jeffrey Epstein.
Trump had withdrawn his endorsement of Greene and called her a “traitor” over the public feud.
Is there a dumpster somewhere to torch and bury this year of bedlam, 2025?
We near its end with equal amounts relief and trepidation. Surely we can’t be expected to endure another such tumultuous turn around the sun?
It was only January that Donald Trump moved back into the White House, apparently toting trunkloads of gilt for the walls. Within weeks, he’d declared an emergency at the border; set in motion plans to dismantle government agencies; fired masses of federal workers; and tariffs, tariffs, tariffs.
Demonstrators at a No Kings rally in Washington, protesting actions by President Trump and Elon Musk.
(Jose Luis Magana / Associated Press)
By spring, the administration was attacking Harvard as a test case for strong-arming higher education. By June, Trump’s grotesquely misnamed Big Beautiful Bill had become law, giving $1 trillion in tax cuts to billionaires and funding a deportation effort (and armed force) that has fundamentally reshaped American immigration law and ended any pretense about targeting “the worst of the worst.”
Fall and winter have brought questionable bombings of boats in the Caribbean, a further backing away from Ukraine, a crackdown on opposition to Trump by classifying it as leftist terrorism and congressional inaction on healthcare that will leave many struggling to stay insured.
That’s the short list.
It was a year when America tried something new, and while adherents of the MAGA movement may celebrate much of it, our columnists Anita Chabria and Mark Z. Barabak have a different perspective.
Here, they renew their annual tradition of looking at the year past and offering some thoughts on what the new year may bring.
Chabria: Welp, that was something. I can’t say 2025 was a stellar year for the American experiment, but it certainly will make the history books.
Before we dive into pure politics, I’ll start with something positive. I met a married couple at a No Kings rally in Sacramento who were dressed up as dinosaurs, inspired by the Portland Frog, an activist who wears an inflatable amphibian suit.
When I asked why, the husband told me, “If you don’t do something soon, you will have democracy be extinct.”
Crowds participate in No Kings Day in downtown Los Angeles in October.
(Genaro Molina / Los Angeles Times)
I loved that so many Americans were doing something by turning out to not just protest policies that hit personally, but to rally in support of democracy writ large. For many, it was their first time taking this kind of action, and they were doing it in a way that expressed optimism and possibility rather than giving in to anger or despair. Where there is humor, there is hope.
Barabak: As in, it only hurts when I laugh?
In 2024, a plurality of Americans voted to reinstall Trump in the White House — warts, felony conviction and all — mainly in the hope he would bring down the cost of living and make eggs and gasoline affordable again.
While eggs and gas are no longer exorbitant, the cost of just about everything else continues to climb. Or, in the case of beef, utility bills and insurance, skyrocket.
The John F. Kennedy Memorial Center for the Performing Arts is another of the long-standing institutions Trump has smeared his name across.
(Jacquelyn Martin / Associated Press)
Meantime, the president seems less concerned with improving voters’ lives than smearing his name on every object he lays his eyes on, one of the latest examples being the John F. Kennedy Center for the Performing Arts.
(The only place Trump doesn’t want to see his name is in those voluminous Epstein files.)
I wonder: Why stop there? Why not brand these the United States of Trump-erica, then boast we live in the “hottest” country on Planet Trump?
Chabria: Stop giving him ideas!
You and I agree that it’s been a difficult year full of absurdity, but we’ve disagreed on how seriously to take Trump as a threat to democracy. As the year closes, I am more concerned than ever.
It’s not the ugly antics of ego that alarm me, but the devastating policies that will be hard to undo — if we get the chance to undo them.
The race-based witch hunt of deportations is obviously at the top of that list, but the demolition of both K-12 and higher education; the dismantling of federal agencies, thereby cutting our scientific power as a nation; the increasing oligarchy of tech industrialists; the quiet placement of election deniers in key election posts — these are all hammers bashing away at our democracy.
Now, we are seeing overt antisemitism and racism on the MAGA right, with alarming acceptance from many. The far right has championed a debate as dumb as it is frightening, about “heritage” Americans being somehow a higher class of citizens than nonwhites.
Vice President JD Vance speaks at the University of Mississippi in Oxford.
(Gerald Herbert / Associated Press)
Recently, Vice President JD Vance gave a speech in which he announced, “In the United States of America, you don’t have to apologize for being white anymore,” and Trump has said he wants to start taking away citizenship from legal immigrants. Both men claim America is a Christian nation, and eschew diversity as a value.
Do you still think American democracy is secure, and this political moment will pass without lasting damage to our democratic norms?
Barabak: I’ll start with some differentiation.
I agree that Trump is sowing seeds or, more specifically, enacting policies and programs, that will germinate and do damage for many years to come.
Alienating our allies, terrorizing communities with his prejudicial anti-immigrant policies — which go far beyond a reasonable tightening of border security — starving science and other research programs. The list is a long and depressing one, as you suggest.
But I do believe — cue the trumpets and cherubs — there is nothing beyond the power of voters to fix.
To quote, well, me, there is no organism on the planet more sensitive to heat and light than a politician. We’ve already seen an anti-Trump backlash in a series of elections held this year, in red and blue state alike. A strong repudiation in the 2026 midterm election will do more than all the editorial tut-tutting and protest marches combined. (Not that either are bad things.)
A stressed-out seeming poll worker in a polling station at Los Angeles’ Union Station.
(Eric Thayer / Los Angeles Times)
The best way to preserve our democracy and uphold America’s values is for unhappy citizens to register their dissent via the ballot box. And to address at least one of your concerns, I’m not too worried about Trump somehow nullifying the results, given legal checks and the decentralization of our election system.
Installing lawmakers in Congress with a mandate to hold Trump to account would be a good start toward repairing at least some of the damage he’s wrought. And if it turns into a Republican rout, it’ll be quite something to watch the president’s onetime allies run for the hills as fast as their weak knees allow.
Chabria: OMG! It’s a holiday miracle. We agree!
I think the midterms will be messy, but I don’t think this will be an election where Trump, or anyone, outright tries to undo overall results.
Although I do think the groundwork will be laid to sow further doubt in our election integrity ahead of 2028, and we will see bogus claims of fraud and lawsuits.
So the midterms very well could be a reset if Democrats take control of something, anything. We would likely not see past damage repaired, but may see enough opposition to slow the pace of whatever is happening now, and offer transparency and oversight.
But the 2026 election only matters if people vote, which historically is not something a great number of people do in midterms. At this point, there are few people out there who haven’t heard about the stakes in November, but that still doesn’t translate to folks — lazy, busy, distracted — weighing in.
If proposed restrictions on mail-in ballots or voter identification take effect, even just in some states, that will also change the outcomes.
But there is hope, always hope.
Barabak: On that note, let’s recognize a few of the many good things that happened in 2025.
MacKenzie Scott donated $700 million to more than a dozen historically Black colleges and universities, showing that not all tech billionaires are selfish and venal.
The Dodgers won their second championship and, while this San Francisco Giants fan was not pleased, their seven-game thriller against the Toronto Blue Jays was a World Series for the ages.
And the strength and resilience shown by survivors of January’s SoCal firestorm has been something to behold.
Any others, beside your demonstrating dinos, who deserve commendation?
Pope Leo XIV waves after delivering the Christmas Day blessing from the main balcony of St. Peter’s Basilica at the Vatican.
(Gregorio Borgia / Associated Press)
Chabria: Though I’m not Catholic, I have been surprisingly inspired by Pope Leo XIV.
So I’ll leave us with a bit of his advice for the future: “Be agents of communion, capable of breaking down the logic of division and polarization, of individualism and egocentrism.”
Many of us are tired, and suffering from Trump fatigue. Regardless, to put it in nonpapal terms, it may be a dumpster — but we’re all in it together.
Barabak: I’d like to end, as we do each year, with a thank you to our readers.
Anita and I wouldn’t be here — which would greatly please some folks — but for you. (And a special nod to the paid subscribers out there. You help keep the lights on.)
Here’s wishing each and all a happy, healthy and prosperous new year.
We’ll see you again in 2026.
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2025 didn’t just expose Democratic divisions — it created a short list of political losers whose missteps are already shaping the battlefield for 2026. From establishment leaders squeezed by a restless progressive base to national figures who burned precious time, this past year has left behind a series of cautionary tales for a party out of power.
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Senate Minority Leader Chuck Schumer, D-N.Y., right, and House Minority Leader Hakeem Jeffries, D-N.Y., walk speak to members of the media outside the West Wing at the White House in Washington, Monday, Sept. 29, 2025, in Washington. (AP Photo/Evan Vucci)
Establishment and old-school Democrats
The loudest, most visible Democratic figures haven’t just voiced opposition to the Trump administration — they’ve also made it clear they expect a new version of the party to emerge going forward. From Mayor-elect Zohran Mamdani in New York City promising expansive government program increases to Rep. Alexandria Ocasio-Cortez’s hint that she could beat Vice President J.D. Vance in a bid for the presidency, progressives can easily say they had some of the most visible momentum in 2025.
And that’s bad news for old-school Democrats.
As recently as last month, both House Minority Leader Hakeem Jeffries, D-N.Y., and House Whip Katherine Clark, D-Mass., faced primary challenges from their progressive base. These challengers cited dissatisfaction with their resistance against the administration. It’s unclear if those calls are disproportionately loud in a moment where Democrats find themselves out of power. But many moderate Democrats told Fox News Digital they don’t think it’s helping win over the electorate’s political middle.
Should progressives continue to crowd out the picture in 2026, more establishment Democrats may find it increasingly difficult to ignore pressure from their far-left flank as the nation heads into the midterms.
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California Gov. Gavin Newsom speaks during a campaign event in support of Proposition 50 in San Francisco, Monday, Nov. 3, 2025. (Gabrielle Lurie/San Francisco Chronicle via Getty Images)
Gavin Newsom
California Gov. Gavin Newsom is running out of time to prove why he could be something more than a party messaging figure. In the past year, he’s pigeonholed himself into exactly that role.
In 2025, Newsom cemented himself as one of the key Democratic foils to Trump’s agenda. And on that front, there’s little question he capitalized on the attention.
Most notably, Newsom pushed through a redistricting effort meant to squeeze five Republicans out of office after Texas advanced a similar plan earlier this year. While the plan received mixed reviews — even from Democrats in the state who were wary of fighting fire with fire — it has certainly advanced Newsom’s national status.
But like every would-be Trump foil, Newsom finds himself somewhat reliant on Trump for his next move. Should Newsom begin to position himself for a 2028 bid for the White House, he won’t have that luxury around forever, and he only has one more year as California’s governor.
Newsom burned precious time in 2025 to show voters in California and across the country what kind of executive he could be.
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Former President Joe Biden talks to reporters on the South Lawn of the White House, Monday, Sept. 2, 2024, in Washington, D.C. (AP Photo/Mark Schiefelbein)
Joe Biden
On several key issues, former President Joe Biden’s legacy has already grown old in 2025.
It took just weeks for the Trump administration to dismantle the claim that Biden was doing everything he could to stop illegal border crossings from pouring into the United States. With a few key executive orders, Trump brought the country to one of its lowest levels of border encounters ever.
And while that’s the most notable entry, the list of double-takes doesn’t end there.
An autopen investigation in the House of Representatives revealed Biden had delegated an unprecedented amount of authority to his aides. Moreover, a book put out by Jake Tapper and Alex Thompson took a deep look at just how hard his inner circle had worked to maintain the president’s image amid concerns about his age and cognitive ability.
Taken together, Biden’s administration just one year removed has plunged Democrats into questions of where to go next and provided Republicans with a wealth of evidence to make the case Democrats weren’t as transparent about the country’s problems as they could have been.
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Senate Majority Leader Chuck Schumer gives a thumbs up as he walks out of the Senate Chamber after speaking on the floor of the Senate on Dec. 20, 2024. (Kent Nishimura/Getty Images)
Chuck Schumer
Few political figures have had as politically damaging a year in 2025 as the Senate minority leader, Chuck Schumer, D-N.Y.
He received most of the blame for a disastrous 43-day government shutdown that largely left Democrats empty-handed. While Schumer himself didn’t vote with the eight Democrats who eventually supported a Republican plan to end the shutdown, he received calls to step aside in the aftermath for failing to keep Senate Democrats on the same page.
According to many Republicans, the political calculus for Schumer during the shutdown was more about putting up a good enough fight to appease the progressive side of the Democratic base.
But Schumer also failed to do that too.
During the shutdown, the New York City mayoral race had come to its final stretch with little word from the Senate Minority Leader. When it became clear the self-proclaimed socialist Zohran Mamdani would capture the party’s nomination, Schumer tried to dodge questions about whether he would support his bid. That reluctance never went away and questions about the relationship between the two Democrats only intensified.
Just days removed from the election, Schumer continued to give non-answers about Mamdani.
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Now at the close of 2025, Schumer has left questions unanswered about whether he can still effectively lead the party and whether he represents the party’s future.
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