In Trump v. Anderson, the Supreme Court declared states powerless to exclude from their ballots candidates for federal office who are disqualified by Section 3 of the Fourteenth Amendment — the constitutional provision adopted after the Civil War to protect American democracy from oath-breaking insurrectionists and rebels. The candidate in question, of course, was former President Donald Trump. Texas and other states that filed amicus briefs supporting Trump were quick to praise the Court’s ruling that the Constitution “gives Congress, not individual states, authority to decide who is eligible to run for federal office under Section 3.” But the federalism principles animating Anderson could come back to haunt those same states in another case quickly heading to the high court. This time, the Court will consider whether individual states can usurp the federal government’s control of the U.S. immigration system.
The case, United States v. Texas, concerns Texas Senate Bill 4, a controversial law that would make it a state crime for noncitizens to unlawfully enter Texas from Mexico, and authorize Texas courts to order the deportation of noncitizens to Mexico. The law has been blocked by the Fifth Circuit, but is on a fast track to the Supreme Court. As that litigation plays out, Republican-controlled legislatures across the country are pursuing bills modeled after S.B. 4. The fate of these laws will likely hinge on how the high court resolves the Texas case.
If the Supreme Court follows its precedents, Texas’s law should be dead on arrival. As the Fifth Circuit explained, “For nearly 150 years, the Supreme Court has held that the power to control immigration — the entry, admission, and removal of noncitizens — is exclusively a federal power.” In 2012, the Court in Arizona v. United States struck down parts of an Arizona law authorizing state police to demand proof of citizenship and arrest people suspected of committing deportable offenses. The Court held that federal law preempted the Arizona law even though it purportedly sought to complement, not displace, federal enforcement. Texas has gone much further than Arizona, declaring that the state’s “authority is the supreme law of the land and supersedes any federal statutes to the contrary.”
The Arizona precedent is reason enough to reject Texas’s flagrant power grab. But the Court’s makeup has changed considerably since it issued that fractured 5-3 decision over a decade ago, and the current conservative majority has shown little fidelity to precedents other than their own.
That’s why the Court’s recent decision in Anderson is particularly relevant. While it was not an immigration case, Anderson outlines general principles regarding the Constitution’s allocation of federal and state power. And on those concepts of federalism, all nine justices were in agreement.
Experts have rightly criticized Anderson as ahistorical, atextual, and driven by consequentialism rather than the law. Having served as counsel for the Colorado voter respondents in the case, I agree the Court simply got it wrong. (And surely the Union states that ratified the Fourteenth Amendment would have been shocked to learn they were powerless to stop disqualified Confederate leaders like Jefferson Davis and Robert E. Lee from running for federal office in their states). But no matter its flaws, Anderson is now the law of the land. And faithful application of the Court’s federalism principles should doom Texas’s attempt to seize control of national immigration policy.
No Affirmative Delegation of Constitutional Power to the States
Anderson held that any state power to regulate federal officers and candidates must come from an “affirmative[] delegation” of constitutional authority. That is so, the Court reasoned, because federal officers “owe their existence and functions to the united voice of the whole, not a portion, of the people.” Although the Constitution expressly gives broad authority to the states to run presidential elections — a power states have long exercised to exclude constitutionally ineligible candidates from their ballots — the Court deemed that power insufficient to enable enforcement of Section 3. In the Court’s view, the Constitution empowers Congress to enforce that provision, and allowing concurrent state enforcement would impermissibly “burden … congressional power.”
This reasoning applies with even greater force in the immigration context. As the Arizona Court recognized, the federal government has “broad, undoubted power over the subject of immigration,” based on its express constitutional authority to “establish an uniform Rule of Naturalization” and “its inherent power as sovereign to control and conduct relations with foreign nations.” By contrast, the Constitution makes no “affirmative[] delegation” of power to the states to adopt their own immigration schemes or to conduct foreign policy, let alone any power comparable to the states’ broad authority over federal elections.
Moreover, Congress has exercised its power to regulate immigration through a pervasive statutory scheme that preempts even complementary state regulation. The effect is to make a “single sovereign responsible for maintaining a comprehensive and unified system” of immigration. This regime creates a formidable barrier to state laws like S.B. 4 because, as Anderson reminds us, “States have no power … to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress.”
Thus, the Constitution’s text and federal law vest broad power in the federal government to control immigration, while affirmatively delegating no coordinate power to the states. In this respect, Texas is on far weaker constitutional footing than Colorado was in Anderson.
A Strong National Interest in Uniformity
Another concern driving Anderson was the “‘patchwork’ that would likely result from state enforcement.” All nine justices agreed that “state-by-state resolution of” Section 3 challenges against presidential candidates would not likely “yield a uniform answer consistent with the basic principle that ‘the President … represent[s] all the voters in the Nation.’” Ignoring that ballot access in presidential elections is characteristically a state-by-state patchwork, the Court insisted the case raised a “uniquely important national interest” that cried out for uniformity. The Court thus accepted arguments by Texas and other states that “state-by-state” adjudication of Section 3 would “‘sacrifice the political stability of the system’ of the Nation ‘with profound consequences for the entire citizenry.’”
The U.S. immigration system demands uniform policy that only the federal government can provide, and it has done precisely that for nearly 150 years. The Arizona Court explained “it is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States.” The United States similarly argues in the Texas case that “a patchwork of state-driven policies governing entry and removal” of noncitizens “would prevent the federal government from speaking with one voice.”
These concerns are not hypothetical. In an amicus brief opposing S.B. 4, the government of Mexico detailed how Texas’s law will frustrate diplomatic relations between Mexico and the United States, including by derailing collaborative efforts toward a uniform migration framework and hindering U.S.-Mexico trade.
More than a century of precedent supports the federal government’s position. As the Supreme Court declared in 1875, no “single state can at her pleasure embroil us in disastrous quarrels with other nations.” Or, in Anderson’s words, “nothing in the Constitution requires that we endure” the “chaos” that would be wrought by individual states thwarting the federal government’s control over foreign relations.
Reconstruction’s Transformation of U.S. Federalism
The Fourteenth Amendment’s seismic reallocation of federal and state power looms large in both Anderson and the Texas case. Anderson stressed that the amendment “expanded federal power at the expense of state autonomy and thus fundamentally altered the balance of state and federal power struck by the Constitution.” The Court therefore deemed it “incongruous to read this particular Amendment as granting the States the power … to disqualify a candidate for federal office.”
Federal immigration control traces its origins to the Fourteenth Amendment’s realignment of our federalism. As historian Kevin Kenny notes, “before the Civil War and Reconstruction, Congress played almost no role in regulating the admission, exclusion, or removal of immigrants. … Only when slavery was abolished did the era of national immigration control get underway.” With the Fourteenth Amendment’s guarantees of birthright citizenship, equal protection, and due process, “it soon became clear that the newly expanded federal state created by Reconstruction could also be used to restrict immigration in a way that individual states could not.”
This timeline informs which historical era is most pertinent to the constitutionality of S.B. 4. Texas and supporting amici cite Justice Scalia’s partial dissent in Arizona, which discussed a purported antebellum tradition of state laws restricting immigration. But that era is largely irrelevant. Because Reconstruction “fundamentally altered the balance of state and federal power struck by the Constitution” — including with respect to immigration — the focus must be on the postbellum era. And from that period through the present, the power to regulate the entry and removal of noncitizens has belonged to the federal government.
Conclusion
For all its flaws, Trump v. Anderson is the law of the land. And while many Republican-led states welcomed the decision, Anderson’s conception of federalism fatally undermines those same states’ dangerous attempts to seize control of the U.S. immigration system. Failing to consistently apply those federalism principles in the Texas case would only further erode public trust in the Supreme Court’s impartiality and credibility.