Immigration: Texas has a Constitutional Case, But Not a Moral One

Construction of a floating barrier in the Rio Grande near Eagle Pass as part of Texas's Operation Lone Star. Public Domain.
Construction of a floating barrier in the Rio Grande near Eagle Pass as part of Texas’s Operation Lone Star. Public Domain.

On January 22, a 5-4 US Supreme Court vote allowed US Border Patrol agents to cut razor wire installed along the US-Mexico border (which also happens to be the Texas-Mexico Border) in the vicinity of a local park that the Texas Military Department seized earlier in the month. Eagle Park verges on the Rio Grande river, and the idea of the razor wire is to deter (or injure or kill) migrants crossing from the Mexican side.

The order is a temporary measure, put in effect until the court hears and rules on the entire dispute over state versus federal authority at the border.

While there are a number of factual claims in dispute, it’s worth reviewing what the law — specifically the “supreme law of the land,” the US Constitution — has to say on the matter, and whether or not that law is morally justifiable.

Put simply, Texas actually has a constitutional hook to hang its deter/injure/kill program on.

Article I, Section 9 of the US Constitution clearly and unambiguously forbids the federal government to regulate immigration — and strong implies a state power to do so:

“The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight …”

Article V of the same Constitution forbade amending that provision before 1808.

The Tenth Amendment requires such a post-1808 constitutional amendment to create any federal power over immigration. No such amendment has ever been proposed or ratified.

And, as Chief Justice John Marshall noted in the 1803 case Marbury v. Madison, “an act of the legislature, repugnant to the constitution, is void.”

There are, in other words, no valid federal immigration laws, despite an activist Supreme Court’s decision magically miracling up a federal immigration power out of nothing inĀ Chy Lung v. Freeman (1875).

But that “States now existing shall think proper to admit” verbiage does imply that the ratifiers of the Constitution thought such a state power existed by default. So if Texas wants to deter people from coming across the Rio Grande (or kill or injure them for trying to do so), then as a constitutional matter, if handled honestly, this whole thing boils down to a more mundane question: Whether the Rio Grande is federal property, state property, or some other kind of property.

But, then, there’s the moral side of the question, and both the US and Texas governments are on the wrong side of that one.

Peacefully traveling to, moving to, or working at wherever one darn well pleases is a human right, and none of Greg Abbott’s or Joe Biden’s business. Using force or violence to impede the exercise of that right is a crime.

That’s true whether the criminals involved work for the Texas Military Department, the US Border Patrol, the China Immigration Inspection branch of the People’s Police, or for that matter, the now-defunct East German Stasi.

Immigrants don’t belong in cages. Abbott and Biden do.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism ( He lives and works in north central Florida.