Manufactured State Immigration Emergencies as State Vigilantism

Abstract

President Trump shattered norms when he declared a national emergency at the U.S.–Mexico border to build a border wall. State governors have now followed that lead in taking up what Justice Jackson, dissenting in Korematsu v. United States (1944), called the “loaded weapon” of emergency—doing so, like Trump, in the context of the border. Governors of Texas, Arizona, and Florida have all issued state declarations of emergency based on (1) migration, and (2) the Biden administration’s purported failure to engage in immigration enforcement. These state emergency declarations have not been studied or even identified in legal literature as a state mirror to Trump’s federal declaration, even though they are as norms-shattering as the Trump declaration was both facially and in implementation. In justifying the emergency declarations, the governors have used xenophobia and the logic of self-help from international law. In other words, this is state vigilantism: claiming that because the federal government is not using its power to protect states’ residents, the states are unilaterally exercising it themselves under state emergency authority. This state vigilantism is sweeping, extraordinary, and contrary to the Supremacy Clause—particularly in Texas, which has implemented a parallel system of state immigration enforcement and has deployed National Guard soldiers along the border with instructions to force migrants into Mexico. It is also continuous with the erosion of norms begun with Trump’s border wall “emergency.” In addition to the reforms that scholars suggested following Trump’s declaration, to combat state vigilantism, I propose that the federal government not only focus on Supremacy Clause litigation but also exercise its civil rights enforcement authority and that state legislatures and judges limit the scope of state emergency declarations, to exclude policy disagreements with the federal government.