I wonder how SCOTUS originalists view the argument outlined below.
States’ Rights Resurgence: Greg Abbott and the Constitutional Compact
The Beacon / by William J. Watkins / February 07, 2024 at 06:14PM
I am generally a fan of Texas Governor Greg Abbott’s sparring with the Biden administration over the collapse of the southern border. As noted by the House Oversight Committee, “The Biden Administration sparked the worst border crisis in American history and placed Americans’ lives at risk by abandoning deterrent-focused immigration policies and proven border enforcement tools.” Estimates differ, but at least 10 million illegal aliens have entered the United States during Biden’s term in office. As I have pointed out elsewhere, although we assume the federal government is constitutionally entitled to superintend immigration matters, the Constitution is—at a minimum—murky on this matter.
Greg Abbott—perhaps to his detriment—takes the position that the federal government is in charge of immigration but protests that federal officials refuse to enforce the law. This refusal, he contends, has left Texas at the mercy of invaders. By describing the swarms as “invaders,” Abbott invokes Article I, § 10, Clause 3, which prohibits states from engaging in war absent an invasion or other imminent danger. Abbott obviously believes that invoking that constitutional provision will yield better results than challenging federal power over immigration.
With Abbott’s efforts, are we seeing a resurgence in states’ rights? Maybe. But Abbott needs to be careful as he appeals to state powers to control the federal government. For example, in a proclamation issued on January 24, 2024, Abbott asserts, “The federal government has broken the compact between the United States and the States.” This sounds like the sweet music of Jeffersonian constitutional theory to the untrained ear. (And most Americans, unfortunately, have untrained ears regarding state and federal relations.)
But this lead statement of the proclamation is wrong. The federal government is not a party to the constitutional compact. The states are. The federal government is merely an agent of the contracting parties. To borrow from agency law, the states are the principals, and the federal government is an agent exercising only those powers the principals have delegated. “The Federal and State Governments are in fact but different agents and trustees of the people,” Madison wrote in Federalist No. 46, “instituted with different powers, and designated for different purposes.”
Jefferson described the constitutional structure in his Kentucky Resolution of 1798: “that to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party.” The states, Jefferson observed, “constituted a general Government for special purposes,—delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government.” Similarly, James Madison averred in the Virginia Resolution of 1798 that “this Assembly doth explicitly and peremptorily declare that it views the powers of the Federal Government as resulting from the compact, to which the States are parties, as limited by the plain sense and intention of the instrument constituting that compact; as no further valid than they are authorized by the grants enumerated in that compact.”
A proper view of the constitutional compact would strengthen Abbott’s hand if he decided to push matters further. And he just might have popular support to do so. Polls show that immigration is the number one voter concern in 2024. In pending litigation, the federal courts will ultimately tell Texas to stand down and allow the Biden administration to make decisions on immigration matters.
Under the real compact theory, the courts would not be the final word. Based on the equality of the states, Jefferson contended in the Kentucky Resolution that “each party [to the compact] has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.” In defending the Virginia Resolutions in his Report of 1800, Madison reasoned that “[t]he states then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal above their authority to decide in the last resort whether the compact made by them be violated.” In other words, the compact theory denies that any branch of the federal government has the final authority to judge the extent of federal power.
While generations of lawyers have been taught that the Supreme Court is the final arbiter of the Constitution, under the compact theory, this is absurd. No agent (and the federal courts are agents of the states) has the power to instruct the principal on the scope of the agent’s authority. For a thorough discussion of this, see my article in the Duke Journal of Constitutional Law and Public Policy. Under the historical compact theory, Abbott could consider interposition, nullification, and other options depending on the mood of the people and the worsening of the immigration crisis. As chronicled in Chapter 4 of my book Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy, multiple states in both the North and South have appealed to the historical compact theory when combatting measures of the national government.
Governor Abbott should be applauded for his efforts on the southern border. However, he should also take a closer look at Jeffersonian constitutionalism and the proper role of the states as parties to the compact.
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