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  • U.S. vs TX, Forget Invasion, It’s the Tenth Amendment

U.S. vs TX, Forget Invasion, It’s the Tenth Amendment

William L. Kovacs

May 2024

U.S. vs TX, Forget Invasion, It’s the Tenth Amendment

Litigation between Texas and the United States over Texas’s right to defend itself by securing its border with Mexico from the onslaught of illegal immigration addresses momentous yet unexplored constitutional issues. Can Texas defend itself? Can the federal government force Texas to absorb the financial and social cost of illegal immigration?

While U.S. Supreme Court precedent finds these types of disputes non-justiciable political questions to be resolved by Congress, there is legal precedent under the Tenth Amendment that likely shifts the responsibility for and cost of illegal immigration from Texas to the federal government.

Has Texas been invaded? Texas hangs its cowboy hat on two provisions of the Constitution, Article I, section 10 (“Compacts clause”) and Article IV, section 4 (“Guarantee Clause”). The Compacts Clause prohibits states from engaging in war unless the state is invaded or “in such imminent danger as will not admit of delay.” The Guarantee Clause mandates that the United States guarantee each state a Republican form of government and “protect each of them [states] against invasion.

The Keyword in both clauses is “invade,” or derivations of the term.

The few etymologists dissecting these terms conclude that millions of illegals entering the U.S. is not an invasion. A study by The Tenth Amendment Center traces the term from the first English dictionary in 1755 to the present. The term “invasion” has been consistently characterized as a foreign military power equipped with weapons intending to commit physical violence against another country.

A Texas Public Policy Center study, “The Meaning of Invasion Under the Compact Clause of the U.S. Constitution” (2022) study concluded that when the Constitution was drafted, the term “invade” involved two core concepts: entry and enmity (intent to act in armed conflict). The Foundation’s definition of invasion includes state and non-state warfare that seeks to” overthrow the lawful sovereignty of the state.” Under this reasoning, cartel activities could be an “invasion” if Texas can establish violent intent to challenge its sovereignty.

The Supreme Court has been reluctant to address cases involving the Compact and Guarantee Clauses. In Luther v. Borden, 1849, the court was asked to determine the lawful claimant to the Rhode Island government due to an insurrection. The court held the Guarantee Clause is a legislative power residing in Congress; therefore, it is a non-justiciable political question.

In 1912, corporations in Oregon argued that a state law authorizing initiatives and referendums violated the Guarantee Clause since it allowed a popular vote, which is contrary to a Republican form of government. The Supreme Court again held the issue to be a political question. In 1956, Congress delegated its powers to resolve violent conflicts to the President.

In 2023, Texas sought to void Department of Homeland Security (“DHS”) enforcement guidelines. Texas argued that by prioritizing the arrest and removal of noncitizen suspected terrorists, DHS violated federal law by not arresting and removing a more significant number of illegal immigrants. The court dismissed the case for lack of standing since DHS did not prosecute any of the states litigating the issue.

To avoid defeat, Texas could assert its Tenth Amendment rights: “powers not delegated to the U.S. by the Constitution, nor prohibited to the States, are reserved to the States respectively, or to the people.” While the Supreme Court generally dismisses 10th Amendment cases by finding implied constitutional powers to support almost all federal actions, it has recognized limits to federal power over states.
In a 1992 case, New York vs. U. S., the Supreme Court chiseled a Tenth Amendment path for states to defeat claims of federal authority. In that case, Congress enacted legislation mandating that states dispose of all low-level nuclear waste generated within the state or take title to all the waste, including liability for its long-term disposal.

The court held that while Congress had the authority under the Commerce Clause to regulate low-level nuclear waste, it only had the power to regulate the waste directly. As such, Congress sought to commandeer New York’s legislative process, a power that violates the 10th Amendment.

The Federation for American Immigration Reform estimates that illegal immigration costs states $116 billion annually and Texas $13.4 billion annually.

Similar to New York v. U.S., the federal government is de facto commandeering state legislative and appropriation processes by making states responsible for the cost of managing federal immigration policy. While the Supreme Court may view controversies under the Compacts and Guarantee clauses as non-justiciable, it cannot avoid federal actions forcing states to assume the massive cost of illegal immigration. If the federal government has the sole power to regulate immigration, as it claims, it must exercise such power directly and pay for it.

William L. Kovacs, author of Devolution of Power: Rolling Back the Federal State to Preserve the Republic. His previous book, Reform the Kakistocracy, received the 2021 Independent Press Award for Political/Social Change. He served as senior vice president for the U.S. Chamber of Commerce and chief counsel to a congressional committee. He can be contacted at [email protected]


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  • Illegal Immigration Costs More than 13 of 15 Federal Dept.

Illegal Immigration Costs More than 13 of 15 Federal Dept.

William L. Kovacs

January 2024

Illegal Immigration Costs More than 13 of 15 Federal Dept.

The federal government is very slick in sticking the cost on others for programs it wants implemented but wants to avoid paying for. It sticks the cost of $2 trillion of regulations annually on business. It imposes hundreds of billions more on state and local governments to manage the illegal immigration coming through its open southern border.

How does the federal government cause problems like illegal immigration and avoid paying for it? What is the cost of illegal immigration, and how does it compare to the costs of permanent departments of government?

The U.S. Supreme Court holds that the federal government can treat citizens and noncitizens differently under the Equal Protection Clause. As to states, however:

“Under a long line of Supreme Court cases, states and localities that distinguish between citizens and noncitizens are subject to “strict scrutiny,” meaning that to comply with the Constitution, the [state] law or policy that treats noncitizens differently must ‘further [] a compelling state interest by the least restrictive means practically available.”’

If a state denies noncitizens the public benefits offered to citizens, it must establish that such denial is the least restrictive alternative to achieve a compelling state interest. That standard is almost impossible for states to meet. Therefore, if state and local governments provide K-12 education and hospital treatment for emergency medical conditions for uninsured citizens, they must also provide those benefits to illegal immigrants or risk costly civil rights lawsuits.

Moreover, since the federal government does not require localities to verify immigration status before providing benefits and, recognizing in many instances, federal immigration officials will not give the local governments the immigrant’s status, there is a tremendous incentive to provide the public benefits to the illegals to avoid litigation.

What are the benefits to illegals costing taxpayers?

A November 2023 interim report by the majority members of the House Committee on Homeland Security cited two studies on the cost of benefits to illegal immigrants. A May 2023 report by The Center for Immigration Studies calculated the annual costs to state and local governments to care for and house the illegal immigrants was $451 billion. Another 2023 report by the Federation for American Immigration Reform calculated the annual net burden on the U.S. economy from illegal immigrants to be more than $150 billion.

How does the cost of illegal immigrants compare to the cost of running federal cabinet level departments?

While the cost estimates of illegal immigration vary wildly, even the lowest cost estimate of $150 billion is more than the U.S. spends to run most federal agencies. Since state and local governments pick up most of the cost of illegal immigration, and those costs are widely dispersed throughout the U.S., it is necessary to compare the overall costs of illegal immigrants against the cost of federal cabinet-level departments that serve the nation. Using this comparison, one can evaluate the cost of illegal immigration to other nationwide government operations.

$451 billion of care for illegal immigrants exceeds the combined amounts appropriated for the discretionary budget of 10 federal cabinet-level departments.

The United States spent $428 billion in FY 2022 discretionary appropriations to fund the Departments of Commerce, Education, HUD, Interior, Justice, Labor, State, Treasury, and Veterans Affairs. The cost of caring for illegal immigrants was $451 billion. Conversely, the U.S. spent $23 billion less to fund ten major departments of government that run most of the domestic affairs of the nation than state and local governments spend to care for illegal immigrants.

The U.S. spent less of its discretionary FY 2022 budget to fund its two largest cabinet departments,  the Department of Health and Human Services ($131.8 billion) and the Department of Homeland Security ($52.2), than state and local governments spent to care for illegal immigrants, i.e., $185 billion vs $451 billion.

The lower $150 billion estimate to care for illegal immigrants is almost two times the amount spent on all major agencies (not cabinet-level departments) combined.

FY 2022’s discretionary budget appropriated approximately $82 billion to fund all its major federal agencies: The Corps of Engineers, EPA, GSA, NASA, National Science Foundation, Small Business Administration, and numerous other smaller agencies.

The $150 billion spent to care for illegal immigrants is greater than the discretionary budgets of every cabinet-level department and major agency in the U.S. except the Department of Defense.

While calculating the cost of care for illegal immigrants in any one state or city is comparatively small next to the $6 trillion budget of the U.S. government, the total amount spent on illegal immigrant care is massively out-of-proportion when compared to what is spent to run the all the departments and agencies of the federal government.

The amount spent by state and local governments to care for illegal immigrants is as much as the federal government spends to run eighty percent of its domestic programs. The federal government may not care that it is driving state and local governments bankrupt, but it should understand it has embarked on a path to incite civil unrest or civil war. The federal government’s open border does not make sense. But then again, perhaps that is what the federal government seeks, so it has a reason to take repressive actions against citizens it finds objectionable.

William L. Kovacs has served as senior vice president for the U.S. Chamber of Commerce, chief counsel to a congressional committee, chairman of a state environmental board, and a partner in law D.C. law firms. His book Reform the Kakistocracy is the winner of the 2021 Independent Press Award for Political/Social Change. He can be contacted at [email protected]





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  • What If Biden Defies Sup Ct Order Upholding Remain in Mexico?

What If Biden Defies Sup Ct Order Upholding Remain in Mexico?

William L. Kovacs

May 2022

What If Biden Defies Sup Ct Order Upholding Remain in Mexico?

President Biden has been evading several court orders to implement the nation’s “Remain in Mexico” policy without consequence other than Republicans complaining about it on cable talk programs. Biden’s policy decisions result in an open southern border that allows millions of immigrants to enter our country illegally, including drug smugglers, sex traffickers, and terrorists. The dispute is now before the U.S. Supreme Court. However, the potentially traumatic constitutional part of the controversy is – what if the Supreme Court upholds the “Remain in Mexico” policy and the Biden administration refuses to enforce it?

Since the court is without enforcement authority and Congress lacks the courage to follow the Constitution, the simple answer may be there will be no political consequence to Biden until the 2024 election. But what about the many Americans injured by the millions of illegal immigrants trespassing on farms causing damage to land and animals, and the assaults and even murders of Americans, not to mention the costs of migrant care imposed on hundreds of small towns?

A similar situation occurred in 1832 when President Andrew Jackson was outraged over a Supreme Court decision striking down a Georgia law regulating the entry of white people on Native American lands. Jackson stated – “John Marshall has made the decision; now let him enforce it.” Jackson viewed the Supreme Court’s decision as interfering with his power to remove Indians from their land. Jackson’s contempt for the rule of law eventually led to the horrifying Trail of Tears.

Today, another conflict over the regulation of people is before the Supreme Court. The case, Biden v. Texas, addresses whether the Biden administration must enforce the Trump era “Remain in Mexico” policy that requires non-Mexican migrants to wait in Mexico until the U.S. can adjudicate their asylum claims.

On April 26, 2022, Texas argued that under the clear language of the immigration statute, the Biden administration has only three options for dealing with illegal immigrants: (1) decide on a case-by-case basis to allow certain immigrants to stay since they offer benefits to the U.S.; (2) return the immigrant to Mexico, or (3) place the immigrant in U.S. detention centers.

The Biden administration argues it is impossible to detain the millions of illegal immigrants since Congress only provided funding to detain 34,000 immigrants. Yet, Biden’s 2023 budget seeks to reduce that number by 25%. Moreover, since the “Return to Mexico” policy involves foreign policy with another country, Biden asserts the court cannot interfere with the President’s power over foreign affairs. Operating within these restrictions, the administration opted to release most immigrants into the U.S. Unfortunately, Congress restricted its authority to case-by-case determinations. The administration has no statutory power to release immigrants en masse.

An open southern border seems to be as crucial to president Biden as acquiring Indian lands was to president Jackson. What happens if the Supreme Court orders the Biden administration to enforce the “Remain in Mexico” policy and Biden tells the court, “You made the decision; now you enforce it?”

There are very few workable options to make Biden enforce the law.

Congress could appropriate hundreds of billions of dollars to detain the millions of illegal immigrants until their asylum dates. Is it unlikely that Congress would appropriate such amounts since the Biden administration has refused to complete the most straightforward task, building the border wall.

A Republican House of Representatives in 2023 could impeach Biden; however, it is unlikely the Senate will have 67 votes to convict him. Besides being a footnote in history, the impeachment will not result in any serious border enforcement.

Congress could cut off funds to the Department of Homeland Security (“DHS”). Still, Biden would veto such an effort, and it is unlikely that Congress can override the President’s veto.

Conversely, one House of Congress could refuse to appropriate any funds for DHS operations. This situation is unlikely since it would eliminate all border protection.

A real politick option would be for one House of Congress to refuse to provide any funding for an agency desperately desired by Biden’s allies, such as the Department of Education. Withholding these funds might bring the Biden administration to the negotiating table to ensure his most significant contributor, the teachers union, continues its control over American education. It is unlikely, however; that the Republicans have the courage to enter such a high-stakes negotiation.

A more practical option might be for citizens injured by the administration’s actions to seek compensation under section1985 (c) of the Civil Rights Act of 1871. They would allege that the president and the Border Patrol conspired to act illegally and such conduct deprived them of their right to equal protection of the law.

Federal immigration law requires the President and the Border Patrol to prevent persons and goods from illegally entering the U.S. and harming the nation’s security. Since the start of the Biden administration, citizens have complained of the harm caused by its failure to secure the border, a violation of Biden’s constitutional duty to “Take Care” that the laws be faithfully executed.

The federal government’s defenses of sovereign immunity, (the government can do no wrong), and that it operates as one entity so there cannot be a conspiracy, usually prevail. In the civil rights context, the situation is different when the government deprives citizens of their constitutional rights. Simply, the courts have recognized some limits on immunity from government corruption.

In a civil rights context, “… when execution of a government’s policy or custom, whether the policy is made by lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury,” the government as an entity is responsible for the actions. Suppose Biden refuses to obey the court’s order, and the Border Patrol follows Biden’s orders. In that case, the two entities are conspiring to violate U.S. policy. The conspiracy deprives those harmed of their right to the equal protection of the law; e.g., intentionally allowing into the U.S. drug dealers, sex traffickers, and terrorists who harm Americans.

For far too long, citizens have lacked remedies when injured by the joint illegal conduct of the Executive and the agencies following its directive. Other examples help illustrate this point: the IRS targeting the tax returns of conservative groups and the FBI filing false FISA applications to spy on citizens. The general remedy of injunctive relief is usually a day late and of no compensatory value. Federal apologies for violating the civil rights of citizens are cheap. Seeking monetary damages under the Civil Rights laws against the federal agencies that intentionally implement illegal government policy may be the best mechanism for citizens to uncover the scope of any unlawful activity and be compensated for their injury.

William L. Kovacs is the author of Reform the Kakistocracy, the winner of the 2021 Independent Press Award for Political/Social Change. Mr. Kovacs has served as senior vice-president for the US Chamber of Commerce, chief counsel to a congressional committee, and a partner in law DC law firms.

This article was first published in The Thinking Conservative, https://www.thethinkingconservative.com/what-if-biden-defies-supreme-court-order-upholding-remain-in-mexico/



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  • Federal Law: Virtue Signaling While Abusing Rule of Law

Federal Law: Virtue Signaling While Abusing Rule of Law

William L. Kovacs

June 2021

Federal Law:  Virtue Signaling While Abusing Rule of Law

There are probably more well-deserved jokes about the U.S. Congress than any institution in the world. Will Rogers quipped “When Congress makes a joke it’s a law, and when they make a law, it’s a joke.” Rogers perfectly captures how the actions of Congress are more often virtue signaling than efforts to ensure a rule of law society.

“Virtue Signaling” describes “…the act of showing support of doing something ‘virtuous’ because it makes you look good to your peers, rather than because you truly believe it.” While virtue signaling is part of the DNA in most organizations and cable news, it is front and center in Congress. Unfortunately, members of Congress find greater ego satisfaction virtue signaling to supporters than doing the hard work needed to enact carefully crafted laws that will be effectively implemented. While there are thousands of examples of the disconnect between what is enacted into law and the real-world policies of the U.S., the laws outlawing child labor, forced labor, and illegal immigration are excellent examples of the disconnect.

Child Labor

Virtue Signaling – Congress signaled great virtue when it enacted Section 307 of the Tariff Act of 1930 to prohibit the importation of goods made, in whole or in part, by the forced labor of children. With more virtue signaling, Congress in 2005 assigned the Department of Labor the responsibility to reduce the likelihood of these goods being imported into the U.S.

Abuse of Rule of Law – Unfortunately, still today, many of our most in-demand products are made by the forced labor children and are being imported into the U.S. Wise step, a recruitment software company, in an article, identifies the 28 companies that still use child labor. Most of the companies are top brand names but more interesting is the breadth of industries still using child labor to produce products for American consumers. The industries include chocolate making, food production, fashion, apparel, sneakers, toys, and cell phones.

Forced Labor

Virtue Signaling – Forced labor, commonly referred to as “slave labor,” is defined by section 307 as “All work…extracted from any person under the menace of any penalty for its non-performance which the worker does not offer himself voluntarily.” While the statute prohibits any product mined, produced, or manufactured, wholly or in part, by forced labor, it has little enforcement due to a clause that allows the U.S. to waive enforcement if it lacks the resources (i.e., money) to conduct inspections or the products are no longer made in the U.S. but wanted by consumers.

Abuse of Rule of Law – As to the lack of inspection resources, Congress merely fails to appropriate the money for inspections. As to products no longer made in this country, U.S. business decades ago exported its manufacturing base to acquire cheap labor.

Having two self-fulfilling reasons for not enforcing prohibitions on forced labor, the federal government rarely used its section 307 enforcement powers; only 60-75 times between 1930 and mid-1980 and 27 times between 1991-1995. There were no enforcement actions between 2000-2016. In 2016 Congress removed the exemption clause. Since then, there have been 16 enforcement actions.

Immigration and Illegal Immigration

Virtue Signaling – Congress enacted a comprehensive Immigration and Nationality Act that is several hundred pages long. It addresses everything from application forms, different aspects of travel for the different status categories, to visas and foreign entry, to detention procedures. Literally, every step of the legal immigration process is established so that foreign citizens can apply to the United States for citizenship or permission to work. The law is supplemented by regulations, policy manuals, memoranda, and Handbooks, comprising tens of thousands of pages on how to become a U.S. citizen. It appears nothing is left unsaid by the bureaucrats.

Congress has been legislating on citizenship issues since 1790. While Congress has legislated many inconsistent policies over the years, e.g., exclusion at various times of Chinese, Communists, idiots, alcoholics, preferences for nurses at times, and countless other categories of exclusion or preference, it has always had detailed policies on legal entry into the country.

Abuse of Rule of Law – Notwithstanding the countless immigration policies and procedures for legally entering the U.S., President Biden, without any change in law, promised good treatment to undocumented immigrants crossing our Southern border, in violation of U.S. law. He also reinstituted catch and release policy in which these unauthorized citizens are caught and immediately released into the interior of the country, making it impossible to ever find them. For all intents and purposes, these undocumented people are now permanent residents of the U.S., they just lack paperwork.

In the month of March 2021, alone, there were 172,000 persons in this category. Estimates are that 6000 people, per day, are now entering, the U.S., the highest in our history, without complying with our immigration laws.

These unauthorized entrants include drug cartel members, and gang members with indentured servants, sex traffickers and drug dealers, and those sick with Covid-19.

The Rule of Law Is a Fiction in the U.S.

The United States continuously signals virtue claiming to be a Rule of Law society. We have comprehensive laws regulating or prohibiting child labor, indentured servitude, sex trafficking, drug smuggling, and have a process for legal entry into the country. Actually, the U.S. has tens of thousands of laws that regulate most aspects of society, from low-flush toilets to the ethical treatment of animals. We have more laws than any other country in the world. In short, we constantly signal our virtue to the world.

Unfortunately, we have a government that randomly and arbitrarily implements the laws of the nation. We have a big business community that regularly skits the law for extra profit. We openly allow illegal entry into our country of people who are the worst of the lawbreakers, i.e., drug dealers, cartel operators, sex traffickers, and those who enslave others.

The U.S. government should be honest with the laws it enacts. It could legalize certain drugs and prostitution. It could increase the number of work permits for foreign labor. Taking these steps would make our laws consistent with our actions. But the U.S. won’t do any of this. In the end, the federal government wants a massive number of laws so it can prosecute, regulate or eliminate those it finds objectionable.

Tacitus warned us that “The more corrupt the state, the more numerous the laws.” By that definition, we are the most corrupt nation on earth. Congress needs to eliminate all unnecessary laws and enforce the necessary laws. In more colloquial language, Congress needs to stop virtue signaling and start being responsible lawmakers. Having reasonable laws that are obeyed is the basis of the rule of law society and engendering respect for our institutions.