Politics

An old Scalia dissent is driving Texas' immigration dispute with Biden

Published

2 years ago

February 3, 2024

An old Scalia dissent is driving Texas' immigration dispute with Biden

WASHINGTON —

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No other justice signed on to Scalia’s opinion; his view of “sovereign” states was seen by many as extreme and outdated.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

AOC accuses Vance of believing ‘American people should be assassinated in the street’

Published

2 hours ago

January 9, 2026

Press Room

AOC accuses Vance of believing ‘American people should be assassinated in the street’

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Democratic Rep. Alexandria Ocasio-Cortez is leveling a stunning accusation at Vice President JD Vance amid the national furor over this week’s fatal shooting in Minnesota involving an ICE agent.

“I understand that Vice President Vance believes that shooting a young mother of three in the face three times is an acceptable America that he wants to live in, and I do not,” the four-term federal lawmaker from New York and progressive champion argued as she answered questions on Friday on Capitol Hill from Fox News and other news organizations.

Ocasio-Cortez spoke in the wake of Wednesday’s shooting death of 37-year-old Renee Nicole Good after she confronted ICE agents from inside her car in Minneapolis.

RENEE NICOLE GOOD PART OF ‘ICE WATCH’ GROUP, DHS SOURCES SAY

Members of law enforcement work the scene following a suspected shooting by an ICE agent during federal operations on January 7, 2026, in Minneapolis, Minnesota. (Stephen Maturen/Getty Images)

Video of the incident instantly went viral, and while Democrats have heavily criticized the shooting, the Trump administration is vocally defending the actions of the ICE agent.

HEAD HERE FOR LIVE FOX NEWS UPDATES ON THE ICE SHOOTING IN MINNESOTA

Vance, at a White House briefing on Thursday, charged that “this was an attack on federal law enforcement. This was an attack on law and order.”

“That woman was there to interfere with a legitimate law enforcement operation,” the vice president added. “The president stands with ICE, I stand with ICE, we stand with all of our law enforcement officers.”

And Vance claimed Good was “brainwashed” and suggested she was connected to a “broader, left-wing network.”

Federal sources told Fox News on Friday that Good, who was a mother of three, worked as a Minneapolis-based immigration activist serving as a member of “ICE Watch.”

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Ocasio-Cortez, in responding to Vance’s comments, said, “That is a fundamental difference between Vice President Vance and I. I do not believe that the American people should be assassinated in the street.”

But a spokesperson for the vice president, responding to Ocasio-Cortez’s accusation, told Fox News Digital, “On National Law Enforcement Appreciation Day, AOC made it clear she thinks that radical leftists should be able to mow down ICE officials in broad daylight. She should be ashamed of herself. The Vice President stands with ICE and the brave men and women of law enforcement, and so do the American people.”

Paul Steinhauser is a politics reporter based in the swing state of New Hampshire. He covers the campaign trail from coast to coast.”

Politics

Contributor: Don’t let the mobs rule

Published

2 hours ago

January 9, 2026

Press Room

In Springfield, Ill., in 1838, a young Abraham Lincoln delivered a powerful speech decrying the “ravages of mob law” throughout the land. Lincoln warned, in eerily prescient fashion, that the spread of a then-ascendant “mobocratic spirit” threatened to sever the “attachment of the People” to their fellow countrymen and their nation. Lincoln’s opposition to anarchy of any kind was absolute and clarion: “There is no grievance that is a fit object of redress by mob law.”

Unfortunately, it seems that every few years, Americans must be reminded anew of Lincoln’s wisdom. This week’s lethal Immigration and Customs Enforcement standoff in the Twin Cities is but the latest instance of a years-long baleful trend.

On Wednesday, a 37-year-old stay-at-home mom, Renee Nicole Good, was fatally shot by an ICE agent in Minneapolis. Her ex-husband said she and her partner encountered ICE agents after dropping off Good’s 6-year-old at school. The federal government has called Good’s encounter “an act of domestic terrorism” and said the agent shot in self-defense.

Suffice it to say Minnesota’s Democratic establishment does not see it this way.

Minneapolis Mayor Jacob Frey responded to the deployment of 2,000 immigration agents in the area and the deadly encounter by telling ICE to “get the f— out” of Minnesota, while Gov. Tim Walz called the shooting “totally predictable” and “totally avoidable.” Frey, who was also mayor during the mayhem after George Floyd’s murder by city police in 2020, has lent succor to the anti-ICE provocateurs, seemingly encouraging them to make Good a Floyd-like martyr. As for Walz, he’s right that this tragedy was eminently “avoidable” — but not only for the reasons he thinks. If the Biden-Harris administration hadn’t allowed unvetted immigrants to remain in the country without legal status and if Walz’s administration hadn’t moved too slowly in its investigations of hundreds of Minnesotans — of mixed immigration status — defrauding taxpayers to the tune of billions of dollars, ICE never would have embarked on this particular operation.

National Democrats took the rage even further. Following the fateful shooting, the Democratic Party’s official X feed promptly tweeted, without any morsel of nuance, that “ICE shot and killed a woman on camera.” This sort of irresponsible fear-mongering already may have prompted a crazed activist to shoot three detainees at an ICE facility in Dallas last September while targeting officers; similar dehumanizing rhetoric about the National Guard perhaps also played a role in November’s lethal shooting of a soldier in Washington, D.C.

Liberals and open-border activists play with fire when they so casually compare ICE, as Walz previously has, to a “modern-day Gestapo.” The fact is, ICE is not the Gestapo, Donald Trump is not Hitler, and Charlie Kirk was not a goose-stepping brownshirt. To pretend otherwise is to deprive words of meaning and to live in the theater of the absurd.

But as dangerous as this rhetoric is for officers and agents, it is the moral blackmail and “mobocratic spirit” of it all that is even more harmful to the rule of law.

The implicit threat of all “sanctuary” jurisdictions, whose resistance to aiding federal law enforcement smacks of John C. Calhoun-style antebellum “nullification,” is to tell the feds not to operate and enforce federal law in a certain area — or else. The result is crass lawlessness, Mafia-esque shakedown artistry and a fetid neo-confederate stench combined in one dystopian package.

The truth is that swaths of the activist left now engage in these sorts of threats as a matter of course. In 2020, the left’s months-long rioting following the death of Floyd led to upward of $2 billion in insurance claims. In 2021, they threatened the same rioting unless Derek Chauvin, the officer who infamously kneeled on Floyd’s neck, was found guilty of murder (which he was, twice). In 2022, following the unprecedented (and still unsolved) leak of the draft majority opinion in the Dobbs vs. Jackson Women’s Health Organization Supreme Court case, abortion-rights activists protested outside many of the right-leaning justices’ homes, perhaps hoping to induce them to change their minds and flip their votes. And now, ICE agents throughout the country face threats of violence — egged on by local Democratic leaders — simply for enforcing federal law.

In “The Godfather,” Luca Brasi referred to this sort of thuggery as making someone an offer that he can’t refuse. We might also think of it as Lincoln’s dreaded “ravages of mob law.”

Regardless, a free republic cannot long endure like this. The rule of law cannot be held hostage to the histrionic temper tantrums of a radical ideological flank. The law must be enforced solemnly, without fear or favor. There can be no overarching blackmail lurking in the background — no Sword of Damocles hovering over the heads of a free people, ready to crash down on us all if a certain select few do not get their way.

The proper recourse for changing immigration law — or any federal law — is to lobby Congress to do so, or to make a case in federal court. The ginned-up martyrdom complex that leads some to take matters into their own hands is a recipe for personal and national ruination. There is nothing good down that road — only death, despair and mobocracy.

Josh Hammer’s latest book is “Israel and Civilization: The Fate of the Jewish Nation and the Destiny of the West.” This article was produced in collaboration with Creators Syndicate. X: @josh_hammer

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Ideas expressed in the piece

Democrats and activist left are perpetuating a dangerous “mobocratic spirit” similar to the mob law that Lincoln warned against in 1838, which threatens the rule of law and national unity^[1]
The federal government’s characterization of the incident as self-defense by an ICE agent is appropriate, while local Democratic leaders are irresponsibly encouraging anti-ICE protesters to view Good as a martyr figure like George Floyd^[1]
Dehumanizing rhetoric comparing ICE to the Gestapo is reckless fear-mongering that has inspired actual violence, including a shooting at an ICE facility in Dallas and the fatal shooting of a National Guard soldier^[1]
The shooting was “avoidable” not because of ICE’s presence, but because the Biden-Harris administration allowed undocumented immigrants to remain in the country without legal status and state authorities moved too slowly investigating immigrant fraud^[1]
Sanctuary jurisdictions that resist federal law enforcement represent neo-confederate “nullification” and constitute crass lawlessness and Mafia-style extortion, effectively telling federal agents they cannot enforce the law or face consequences^[1]
The activist left employs threats of violence as systematic blackmail, evidenced by 2020 riots following Floyd’s death, threats surrounding the Chauvin trial, protests at justices’ homes during the abortion debate, and now threats against ICE agents^[1]
Changing immigration policy must occur through Congress or federal courts, not through mob rule and “ginned-up martyrdom complexes” that lead to personal and national ruination^[1]

Different views on the topic

Community members who knew Good rejected characterizations of her as a domestic terrorist, with her mother describing her as “one of the kindest people I’ve ever known,” “extremely compassionate,” and someone “who has taken care of people all her life”^[1]
Vigil speakers and attendees portrayed Good as peacefully present to watch the situation and protect her neighbors, with an organizer stating “She was peaceful; she did the right thing” and “She died because she loved her neighbors”^[1]
A speaker identified only as Noah explicitly rejected the federal government’s domestic terrorism characterization, saying Good was present “to watch the terrorists,” not participate in terrorism^[1]
Neighbors described Good as a loving mother and warm family member who was an award-winning poet and positive community presence, suggesting her presence during the incident reflected civic concern rather than radicalism^[1]

Politics

Trump plans to meet with Venezuela opposition leader Maria Corina Machado next week

Published

14 hours ago

January 9, 2026

Press Room

Trump plans to meet with Venezuela opposition leader Maria Corina Machado next week

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President Donald Trump said on Thursday that he plans to meet with Venezuelan opposition leader Maria Corina Machado in Washington next week.

During an appearance on Fox News’ “Hannity,” Trump was asked if he intends to meet with Machado after the U.S. struck Venezuela and captured its president, Nicolás Maduro.

“Well, I understand she’s coming in next week sometime, and I look forward to saying hello to her,” Trump said.

Venezuelan opposition leader Maria Corina Machado waves a national flag during a protest called by the opposition on the eve of the presidential inauguration, in Caracas on January 9, 2025. (JUAN BARRETO/AFP via Getty Images)

This will be Trump’s first meeting with Machado, who the U.S. president stated “doesn’t have the support within or the respect within the country” to lead.

According to reports, Trump’s refusal to support Machado was linked to her accepting the 2025 Nobel Peace Prize, which Trump believed he deserved.

But Trump later told NBC News that while he believed Machado should not have won the award, her acceptance of the prize had “nothing to do with my decision” about the prospect of her leading Venezuela.