By Rob Natelson | SOURCE: INDEPENDENCE INSTITUTE
This essay was first published in the Jan. 12, 2024 Epoch Times.
Part I of this series showed that the unauthorized mass migration into states at the Southern border qualifies as an “invasion” as the Constitution uses the term. That Part also pointed to a constitutional canard—the false claim that federal power over war, immigration, and foreign commerce is “exclusive,” and that the states have no authority over those subjects whatsoever.
But as Part II and Part III demonstrated, the Constitution explicitly recognizes state authority to wage defensive war when invaded. This Part IV examines a particularly thorny problem: To what extent may the federal government interfere when states exercise their defensive war powers?
The issue comes up this way: First, a state makes a decision traditionally associated with defensive war. It may erect barriers, restrict foreign goods, control immigration, or hold prisoners. Then the federal government or private parties sue the state, claiming these subjects are “preempted” by federal law, and the state may do nothing. Federal preemption arguments have had more success than the Constitution justifies.
The Idea of Federal Preemption
The Constitution grants the federal government certain enumerated (listed) powers. When the federal government constitutionally exercises one of these powers, its decision is “the supreme Law of the Land.” In such a case, federal law “preempts” (overrides) state law. On the other hand, if the federal government acts outside its enumerated powers, the action has no legal effect, and state law remains controlling.
Consider the efforts of Texas authorities to place barriers against migrants trying to cross the Rio Grande River. As noted in Part III, barrier-placement is perfectly consistent with defensive war. On the other hand, control of navigable rivers always has been recognized as a federal prerogative under the Constitution’s Commerce Clause (Article I, Section 8, Clause 3). Because federal regulations of foreign and interstate commerce trump state regulations, two courts have upheld federal objections to Texas putting barriers in the river. Presumably, Texas could erect them away from the riverbank.
A state conducting a defensive war also may wish to restrict foreign commerce (through trade restrictions) and limit migration into the state. The Constitution left the states with that authority. For one thing, the delegates to the 1787 Constitutional Convention explicitly decided that the states should retain the power to impose trade restrictions. For another, the Constitution (Article I, Section 9, Clause 1) explicitly recognizes state authority over both voluntary migration and foreign commerce (in this case, referencing a particularly despicable form of foreign commerce—the slave trade).
If Congress acts to regulate foreign commerce or immigration (Article I, Section 8, Clause 10) (pdf), congressional law preempts inconsistent state measures. On the other hand, if Congress has not acted—or if a state law regulating foreign commerce or immigration is broadly consistent with federal policy—the state law should be valid.
Yet as shown in Part I, courts sometimes void state laws on immigration as “preempted”—even when those state laws are broadly consistent with federal policy. In my view, this is a gross over-extension of the federal preemption doctrine. It seems to be based on the false notion that states have no authority over immigration at all and that federal power is “exclusive.”
When cases like these come before the federal courts, state lawyers must vigorously demonstrate that the “exclusivity” claim is flatly wrong. The evidence—including the Constitution’s actual wording—is quite clear on this point: States may regulate immigration in ways broadly consistent with federal law. They also may regulate immigration when the federal government has not. Once the courts see that the exclusivity claim is wrong, they should allow states more latitude.
Where States Should Be Supreme
Some defensive state war powers should not be subject to federal preemption at all.
During the debates over the Constitution, the document’s advocates strongly emphasized that states would have the right to defend themselves. For example, they affirmed that states would, except in specified circumstances, control their own armed forces. They also represented that states could suspend the writ of habeas corpus, thereby enabling them to hold prisoners of war without trial.
A modern argument against this is the following: The Constitution not only gives the federal government powers listed in the document, but also vast “necessary and proper” (incidental) powers. The federal government can use these to override state efforts at self-defense.
This argument is a threat because, as I explained in my Epoch Times series “How the Supreme Court Rewrote the Constitution,” during the 20th century the Supreme Court stretched the central government’s incidental powers beyond recognition. As a result, the feds can claim they aren’t limited to blocking Texas from erecting barriers in a navigable river. They may assert that they also can prevent state barriers on dry land because of federal incidental power over dry land.
Fortunately, the Supreme Court is aware of the distortions caused by its expansion of federal powers, and sometimes tries to remedy it. Here’s an approach state lawyers might try:
In 1997, the Supreme Court decided Printz v. United States (pdf). In that case, the court considered the federal “Brady Handgun Violence Prevention Act,” which ordered local sheriffs (who legally are state officials) to perform background checks on people seeking to purchase firearms. The federal government argued that the Brady Act was within the Supreme Court’s greatly expanded federal Commerce Power because it was “necessary and proper” to regulating commerce.
Yet the court ruled that even if this part of the Brady Act was “necessary” (incidental), it was not “proper.” The court said a federal law could not be “proper” if it “violate[d] the principle of state sovereignty” by dictating to a state the duties of its own officials.
A state’s power of self-defense is even more central to its sovereignty than full control over its own officials. That power of self-defense should not be subject to the whim of federal officials. Otherwise, those officials could (like the Biden administration) refuse to protect a disfavored state from invasion and then prohibit the state from defending itself as well.
Not even the modern Supreme Court would permit that.