The Texas immigration law is the last test of the United States against its states

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By journalsofus.com


The standoff between Texas and the federal government over whether the state can enforce its own immigration policy reflects a broader, recurring feature of American politics: A series of hot-button issues have become proxy battles over who decides.

During the Trump administration, Democratic-run states like California and blue cities like New York waged legal fights over their right to pass sanctuary laws to protect migrants. Now, the conflict over whether Texas can arrest and deport immigrants is just one part of a broader campaign that red states have directed at the Biden administration.

A coalition of Republican state attorneys general has also gone to court to thwart the government’s efforts to regulate methane emissions from oil and gas drilling, block a program that allows humanitarian entry to immigrants from specific countries and stop a effort to crack down on gun accessories, among others.

The balance of power between the national government and the states has been a source of tensions in the United States since its founding, leading to the Civil War. But in the 21st century, as partisan polarization has intensified, it has morphed into a new dynamic, with states controlled by the party opposite the president periodically testing the limits.

Political issues run the gamut (and include issues like abortion, gun control, same-sex marriage, and even marijuana legalization), but the broader pattern is clear: Every time one party wins control of the central government, the other party uses its control of several states to try to resist national policies.

“We are seeing things we have never seen in the modern era,” said Heather K. Gerken, dean of Yale Law School, who has written on contemporary federalism. “It is really surprising the kind of proxy war that is taking place. “It’s all because the callous partisanship that has long been a feature of Washington has now trickled down to the states.”

A clause in the Constitution says that federal statutes are supreme, and the traditional understanding is that when federal and state laws conflict, federal law prevails. At the same time, the Constitution only grants certain powers to the federal government and reserves the rest to the states. In practice, the powers of both levels often overlap.

As a result, the lines are not always clear, said Jessica Bulman-Pozen, a Columbia law professor who has written about what she calls “partisan federalism.” That ambiguity, he said, combined with the increasing nationalization of politics, has caused parties to use control of the states to resist presidents of the other party.

“We have a lot of political fights that are funneled through this federalist structure, where if you have a Democratic president, Republican-led states try to pick fights with the presidency and the same with Democratic states during Republican administrations,” Ms. said. Bulman. Pozen said. “And certain people’s views on state power and federalism often change with different administrations and different exercises of power.”

Political scientists say the growing partisan gridlock that has plagued Washington over the past 20 years has created the conditions for states that are easily controlled by one party or another, such as Texas and California, to strike out on their own.

Liberal states like California and Democratic-run cities have passed gun restrictions, auto emissions standards that are stricter than national standards, and sanctuary policies to limit how local law enforcement officers can work with criminals. federal immigration agents. Meanwhile, red states passed strict abortion bans and declared themselves Second Amendment sanctuaries.

“States have become increasingly more powerful,” said Lara M. Brown, political scientist and author. “Most of us exist under state laws rather than federal laws. Texans are happy to be able to walk around with their guns. And Californians are happy people, but they are not.”

Akhil Reed Amar, a professor at Yale Law School, said arguments about federalism pit two ideals against each other. One is that everyone will be happier if different parts of the country could govern themselves, as long as people can move to places they agree with. The other is that to be a viable country with an integrated economy, there have to be certain basic rules and uniform national rights.

History shows that there are limits to the different ways states can govern, in part because what happens in one state can affect another.

A judge on the federal appeals panel weighing Texas immigration law examined that question Wednesday, asking whether the state could arrest an undocumented migrant who crossed into the state not from Mexico, but from Arizona. “Maybe?” responded Aaron L. Nielson, the attorney general of Texas.

Just as it became untenable for the nation in the 19th century to endure while some states allowed slavery and others outlawed it (with fights over issues such as what happened when an enslaved person was taken to or fled to a free state), the political reality It’s that people try to use national control to impose a uniform vision.

For nearly 50 years, the Supreme Court’s landmark ruling in Roe v. Wade meant that states could not ban abortion. Then, after a conservative majority overturned that decision in 2022, many Republican-controlled states imposed heavy restrictions on the procedure, while Democratic-controlled ones did not.

But the issue remains volatile. Disputes have arisen over whether anti-abortion states can criminalize travel to other places to terminate pregnancies and whether states that support abortion rights can send abortion pills to women who live in states where the procedure is banned. And both supporters and opponents of abortion have proposed passing national laws to impose their respective ideals throughout the country.

Battles over uniformity and diversity don’t always play out in court. Despite federal laws prohibiting marijuana, Washington has largely allowed more than 30 states to legalize and regulate medical or recreational cannabis, for example.

But too often these fights end in litigation, leaving the final resolution in the hands of the Supreme Court. As the court has tilted increasingly to the right due to President Donald J. Trump’s three appointments, Republicans have an advantage.

In 2015, for example, the court voted 5-4 to strike down laws in conservative-leaning states that limited marriage to heterosexual couples, allowing same-sex couples to marry in all 50 states. In 2022, the court’s expanded conservative majority (in addition to overturning Roe v. Wade) voted in a 6-3 decision to repeal laws in New York and other liberal-leaning states that imposed strict limits on carrying guns in public.

Still, the deepest roots of the conflicts lie in the structure of the United States government that has put the powers of the national government in tension with the states from the beginning.

“You see it over and over again,” said David I. Levine, a professor at the University of California, San Francisco School of Law, who has followed California’s conflicts with the federal government during the Trump administration. “The civil war. Civil rights, school integration. It’s built into the system.”

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