Immigration and States’ Rights

The notions of states' rights harbor a long-held tradition of bigotry, racism, and genocide

Photo by Max Böhme on Unsplash

Recent anti-immigrant proposals in various states across the country directed at non-white migrants reek of the tradition of racism behind arguments for states' rights. Originally brought to bear prior to, during, and after the Civil War, the argument has shifted from protecting slavery to oppressing other marginalized groups such as the LGBTQ community and other minority groups including Black and Brown immigrants.

In Texas, two bills are being proposed to create “Border Protection Units” partially made up of vigilantes and a “Border Protection Court” meant to criminalize migrants. The latter makes not having proper documentation a third-degree felony for crossing the border - increasing the level of offense from a misdemeanor under federal law. This clearly unconstitutional court (more on that later) bars migrants from applying for citizenship at a later date if convicted

If passed, Texas House Bill 20, authored by state Rep. Matt Schaefer, R-Tyler, creates “police” squads made up in part of supposed "law-abiding citizens". The bill legalizes what mayors, such as Don McLaughlin of Uvalde, are already doing in partnering with extremist groups that target asylum-seekers. Well-funded vigilantes have been patrolling the border since former President Obama’s tenure. Now, this law would give them legal authority making them more dangerous.

Adding to the threats asylum seekers face in Texas is a proposed separate judicial system to adjudicate a migrant’s guilt. If passed, Texas House Bill 7, introduced by state Rep. Ryan Guillen, R-Rio Grande City, creates a court system to try migrants picked up by state-sanctioned mobs. The bill proposes raising public and private money to operate the court and to allow for the continued construction of barriers along the Texas-Mexico border.

In Florida, Governor Ron DeSantis also suggests laws targeting migrants that Republicans in the state legislature are promoting. If passed, Florida Senate Bill 1718 introduced by state Senator Blaise Ingoglia, R-District 11, makes it a felony to transport or hide undocumented immigrants (including family members), requires hospitals to report a patient’s immigration status to the state, invalidates out-of-state driver’s licenses issued to undocumented immigrants, and prevents undocumented immigrants to be admitted to the bar in Florida.

With Republicans in control of legislatures in both Florida and Texas, these laws are likely to pass along extreme partisan lines. Since the election of former president Obama and the Tea Party takeover of the Republican Party, conservatives in the US have since adopted white nationalist views once relegated to groups like the Ku Klux Klan (KKK). Now, groups similar to the KKK, albeit by different names, are more prominent and in greater numbers than ever.

Hate groups and extremists can be found influencing public opinion in every part of the country and it seems there is no stopping them. And despite the unconstitutionality of book bans by the state, the silencing of dissent from non-conservatives, the attacks on telling the truth about US history, and the attacks on individual civil liberties against individual expression, the pushback against these repressive groups and authoritarian laws seem lackluster if not non-existent.

Unconstitutional Policy

Since 1898, the Supreme Court has affirmed the rights of immigrants in the US over a dozen times according to the US Constitution. The 14th Amendment, Section 1 states, “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” It’s worth noting that this section specifically differentiates between “citizens” and “any person”, as has been argued by dozens of justices throughout history. It’s a clarification that means migrants are guaranteed due process under US law. It also means they are protected by US law regardless of immigration status. 

Additionally, Article 1, Section 8, Clause 4 of the US Constitution specifies that Congress shall have the sole power “to establish a uniform rule of naturalization.” It neither grants states nor a president authority over immigration and naturalization. Republicans are keenly aware that the language has been consistently upheld to deem laws like those proposed in Texas and Florida unconstitutional. They intend to challenge the merits of that argument through technicalities.

The Immigration Reform Law Institute (IRLI), the legal arm of designated hate group disguised as a think tank, the Federation for American Immigration Reform (FAIR), is among a host of groups attacking those rights. The IRLI is using the case of 6,000 migrants who had their personal information posted publicly by ICE. The posting, which was public for five hours, put migrants fleeing violence at greater risk. The IRLI is arguing otherwise. 

The IRLI is fighting the notion that asylum-seekers were put at risk by claiming migrants aren’t entitled to constitutional rights because they didn’t “enter” the country based on their definition of what constitutes an entry. These rarely heard-about court battles are how identity-driven extremist groups continue to succeed in codifying their white nationalist agenda.

Both FAIR and IRLI are part of a network of hate groups known as the Tanton Network created by John Tanton. Beginning with FAIR in 1979, Tanton’s goal has been to destroy the Immigration and Nationality Act (INA) of 1965 which ended the quota system that limited immigration to mostly Northern Europeans. From Republican governors and congresspeople to hate groups and so-called policy institutes, all have seemingly adopted Tanton’s dream.

Driven by racist “white replacement” conspiracy theories, they are betting on the extremely radical conservative Supreme Court agreeing with their narrative and overturning more than a century of precedent. But weighing the arguments from previous cases makes this a tough ask. The strategy of redefining “entry” into the country is also a double-edged sword.

One is considered to have entered and been present once they have been apprehended. It seems the so-called crime of “illegally” crossing the border could not have possibly occurred or be a prosecutable offense otherwise. The entire notion of borders is to designate where one nation ends and the other begins. To trespass any border is to be present in the country entered.

Yet, no matter the absurdity of IRLI’s claim, one can not deny that the Supreme Court is poised to allow for such an atrocious redefining that could lead to the undermining of US immigration law altogether. Despite all these efforts, these groups fail to realize that US immigration law will still be governed by international law which the US intentionally mirrors.

Illegal Vigilantism

According to the US Department of Justice (DOJ), vigilantism is defined as “acts of coercion in violation of societal limits but intended to defend the prevailing distribution of values and resources from some form of attack or subversion.” However, vigilantism is still found to be illegal in most cases. But states created ways to subvert social norms by legalizing vigilantism.

Legislation like “stand your ground” laws and a little-known Texas law that allows citizens to assist police in the apprehension of suspects, for example, are all tools used as a workaround to the outlawing of mob justice. Despite the idea that no state law can supersede federal law or the US Constitution, the federal government rarely takes action against oppressive state policies like these.

Vigilantism has a horrifying history in the US. It has been employed in lynchings, murders, beatings, and destruction of property without any tangible evidence of guilt. In the case of Texas law, the state gives civilians authority to act only in the same capacity as a police officer. But civilians are not trained to function like cops, thus, putting innocent people in danger. While civilian intervention typically results in violations of people’s civil rights and gets cases thrown out, there is rarely justice for people who may have been maimed or killed by vigilantes.

Cases like these are why the United States passed the Ku Klux Klan Act in 1871 - the third Act in a series of stringent Enforcement Acts against mob justice. While the law was initially meant to eliminate extrajudicial violence and protect the civil and political rights of more than four million recently freed enslaved Black people, it has since been enforced in myriad cases involving other marginalized groups. At the time of its passing, the KKK freely threatened and attacked Black people and their allies all over the South to undermine Reconstruction.

“An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes”

- Ku Klux Klan Act of 1871

The bill authorizes a president to intervene in states that attempt to deny “any person or any class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws.” An explanation that defines what Florida and Texas Republicans are trying to do in denying asylum-seekers their right to due process. Add someone in an official capacity - such as a sheriff or mayor like Don McLaughlin of Uvalde - deputizing civilians to violate migrants' civil rights and suddenly, they’re infringing on the merits Ku Klux Klan Act.

Regardless of the seeming illegalities of these oppressive and blatantly racist laws, far-right Tea Party politicians that have taken over the current Republican Party think they have the support to subvert the Constitution. While that may sound tone-deaf on their part, we’ve seen what a loud minority can do. They are intentionally driving the United States off of a cliff with culture wars.

Conservative politicians have adopted the mentality of every white nationalist hate group seeking to create civil ethnic war in the United States. They are not interested in a diverse civilized society. They want to maintain white power over the country and are in no way willing to create space for anyone who isn’t a white Christian male.

Racism and bigotry are destroying this country. It’s up to everyone to start confronting them head-on.

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Arturo is a writer, journalist, and publisher of The Antagonist Magazine and a regular contributor at Latino Rebels and Unicorn Riot. You can find him on Twitter, Facebook, and Instagram.