Is the Border Wall Constitutional?

California attorney general, Xavier Bercerra, has filed suit against the Trump administration for his plans to build a border wall along the California and Mexican border. The suit claims several violations including environmental concerns, a violation of separation of powers between both the federal government and states (Tenth Amendment violation) that will hurt the State’s tourism as well as between Congress and the Executive. If this goes to the Supreme Court this will be a very tough sell for California for a variety reasons that I will try to outline.

First, it is probable that the Court may decide that it lacks jurisdiction over the case because it is a political question to be decided by Congress and the President. The crux of border wall argument may come down to the Court’s interpretation of Article 4, Section 4 (Protection Clause) of the Constitution which reads, “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” It is important to note that Article 4 is not a Congressional enumerated power outlined in Article 1, Section 8. This is important because Article 4 is not solely a Legislative duty, but a joint duty between Congress and the Executive. I would argue further if Congress fails to act against a potential threat (not just when they are adjourned on recess), the President has the right do so. Thus, the Separation of Powers complaint that immigration and protecting the country against terrorism or the dangers of drug cartels is a Congressional function and Trump is violating the Separation of Powers is nonsense. The Republican Form of Government clause of Article 4, Section 4 has been ruled a political questions issue in Luther v. Borden (1849). In this case the Court held establishing a Republican form of government among the states was a political question to be decided between Congress and the President and the Court had no Jurisdiction. Hence, many would also argue the Protection Clause of Article 4, Section 4 is also a political question. However, it may not be that simple. In Baker v. Carr (1962), the Court ruled that State Houses and Senates had to be apportioned based on population to have a Republican form of government, but the Court uses the equal protection clause as a basis for their decision. The equal protection clause does not apply to the border wall case (since the wall is to cover all states which border with Mexico). But Baker v. Carr is troublesome for Trump because the Court did rule on a political questions case (the Court’s actions are not always seen as consistent). Secondly, the case may not be ripe for the Court to have Jurisdiction. It is impossible to understand the implications the Wall will have on either tourism or the environment before it is built, so the case may not be ripe until an injury or damages have been suffered.

Even if we evaluate a Congressional enumerated power interpretation of the Constitution, California still has no case. Article 1, Section 8 of the Constitution outlines enumerated Congressional powers. Congress actually has no authority over immigration, but only over naturalization. Therefore, California may be correct to say that the Federal Government has overstepped its authority and violated state’s rights by acting on immigration. But the Federal Government has been acting on immigration for years and the Court has upheld this behavior. In Arizona v. United States (2012), the Court held that many provisions of the Arizona immigration law were preempted by federal law. Our history is filled with federal laws over immigration including controversial ones which targeted certain countries to limit their immigration numbers (China and South and Eastern Europe). In other words, federal law on immigration is the supreme law of the land and states cannot violate these laws even when they are controversial (remember, sanctuary cities and states also violate federal immigration laws). In many regards, it makes sense for immigration to be controlled by the federal government since having 50 different state immigration laws would cause a national mess. For instance, it makes little sense for each state to enforce different quotas for immigration. The federal government is well within its powers to build a border wall to control “naturalization” of citizens (those children born to illegal aliens), prevent drug trafficking, prevent terrorism, and even prevent illegal immigration which is costly to citizens and can affect the employment of citizens. The federal government may do what is necessary and proper to carry out the tasks outlined above even if the means chosen to achieve the ends may be harmful to the states. In McCulloch v. Maryland, the Court said a National Bank was Constitutional even if the means to collect taxes was not the most appropriate to accomplish the ends. In fact, many people have held that the National Bank, at times in American history, was harmful to the American Economy. The Federal Government may also treat immigration as commerce. People have been held by the Court to be part of interstate commerce to uphold the Civil Rights Act of 1964 (Atlanta Hotel v. United States and McClung v. Katzenbach). And the Court has ruled that the Federal Government has the authority to prohibit commerce such as lottery tickets in Champion v. Ames (1903) and any product that violated child labor laws in United States v. Darby (1941) which upheld the Fair Labor Standards Act of 1937. Hence, I find nothing illegal about the United States trying to prevent or prohibit immigration based on Commerce Clause precedent. The United States has had immigration laws for centuries and a border wall for decades to control immigration for national security reasons. Both Congress and the President are within their rights to do almost anything Necessary and Proper for national security reasons. The question is: Does the President violate the Separation of Powers by issuing an executive order or by having funding for the wall incorporated in an omnibus bill to bypass Congress? These actions do not violate Separation of Powers any more than Obama’s DACA executive order over immigration or Obama’s pet projects incorporated in the stimulus bills (green spending or the Race to the Top). If the Trump executive order to temporarily curb immigration from certain countries is seen as legal, then a border wall to curb illegal immigration is also legal. At the same time, spending, budgets, and appropriation bills are political questions to be decided between Congress and the Executive branches and the Court has no jurisdiction over these debates and decisions.

The lawsuit filed by California and Bercerra is nothing more than an axe to grind against Trump and an effort to protect their sanctuary immigration laws. Trump should counter sue California to end their practice of sanctuary cities.

It is ironic how most of the Court decisions, outlined in this blog, to defend the Trump wall where bad opinions either on their merits or methodology. But liberals often forget that Constitutional expansions can work both ways and bad decisions will eventually work against them over some issues. This is why interpreting the Constitution using originalism is best for both conservatives and liberals.