Texas versus the United States: immigration, national policy or international issue?

Ricardo Israel

By: Ricardo Israel - 10/04/2024

Share:     Share in whatsapp

In the final stretch of the presidential election, the issue of immigration, especially illegal or irregular immigration on the southern border, is one of those that will define the name of the next president. However, it is not the only country where it occurs.

In the US the debate is polarized and full of mutual accusations. By the way, the inability to reach minimum agreements on this or other important issues is striking, and this statement is so true that the last time politicians reached relevant agreements was 4 decades ago, during the Reagan administration. The legal solutions for this problem are so old, difficult to solve, to which is added that millions of immigrants without a permanent visa will probably never be expelled, who have already made a life here as well as generally find employment. , as they are needed for various jobs that the locals do not want to do.

What is difficult to understand is the virtual impossibility of the power being able to find a rational solution not only to the global issue, but also to situations of minimal justice, as is the case of the “dreamers”, those who cannot obtain their permanent residence, despite who arrived as children brought by their parents, and have not known another country that they can consider as their own, and many do not speak any other language than English.

However, there is another aspect that is also present that, to my surprise, figures very little in the debate and that I will explain later. It is about the fact that two laws are being applied to immigration at the same time, one is the national law still in force, while, on the other hand, international law is applied, above all, by the federal government, although the United States .has not signed any of the corresponding treaties.

This is what surprises me the most, and makes the solution even more difficult, since political division and polarization is just one of the facets of an issue that seems to have no solution in a country that has historically gone through periods of welcome and rejection. to immigrants, only now they seem to coincide at the same time, and in November they could decide both local and national elections.

Furthermore, the US continues to be an open country, since over one and a half million people enter legally with a residence visa each year, among whom I include myself as well as my parents and children, all separately in time. This, without counting those who arrive with student, work or investment visas and who ultimately stay here, all in comparison to large countries like China or Japan where there is practically no immigration of any numerical relevance.

As on other occasions, it is possible that since it cannot be resolved in the appropriate places, be it elections or Congress, it is likely that the issue will be resolved - at least partially - by the Supreme Court when reviewing the case it has faced. to Texas with the federal government, or, Texas versus the United States as it has been declared in the Court.

In the United States, the Supreme Court has greater importance than institutions of the same name in other countries, since it is not only the highest court, but also because it is the only institution with the capacity to make its resolutions mandatory not only for the minor Courts but also for every institution or person of the nation, because in addition to the separation of powers, there are checks and balances, including that special role of the supreme courts.

It is, at the same time, a federal country, but truly federal and at all levels, which in practice establishes a real equivalence in power and attributions between the state and national governments, very different from what happens with those countries that are also called federal (Argentina, Brazil, Mexico), but where the legal and resource predominance of the central government is such that it has much greater power than the state or provincial ones.

In the US it is not new, but it has been that way historically, since first there were colonies that approved Articles of Confederation and then drafted a Constitution, in which 13 colonies transferred powers to the government that was installed in the new city of Washington and not the other way around.

And since then, the institution in charge of arbitrating the relationship between the federal government and state and local governments is the Supreme Court, with the states having their own powers, in addition to governors, congresses and local governments. And they are powers of which they are very jealous. It is the situation that explains why the police depend on mayors, that the national guard depends on governors, and that during the pandemic many of the health responsibilities fell to state and local governments. It is the same situation that leads to the fact that instead of one electoral system there are at least 51, the 50 states plus the one in the capital Washington, known as the District of Columbia.

It is also what leads to the fact that it is not the federal government that finances the power structure, but rather the House of Representatives that delivers the resources, registering situations where, in the absence of a political agreement, the paralysis is such that not even museum workers or the armed forces receive their salaries and wages while this situation lasts.

In the relationship between states versus the federal government, a case with the potential to resolve the issue of immigration, legal, and, above all, illegal or irregular, has been raised between the governor of Texas (with the support of other Republican states) and the White House, with the addition that state feelings are greater in Texas than in other states, since Texas was a sovereign country for nine years, after its rebellion against Mexico and before joining the Union.

The Supreme Court is not just an appellate court, the final word on legal matters. It is more than that, since it is also the Constitutional Court and not only does it not have the obligation to accept all appeals, but it does so with few of them, usually when there is a constitutional issue. As recently as March 19, the Supreme Court rejected an appeal from President Biden, declaring that a Texas law was constitutional and he was allowed to enforce it, including arresting migrants that Texas law deemed illegal.

As different courts have ruled differently, we are now waiting for the next steps, and whether, as expected, the Supreme Court will continue hearing arguments, and whether it will leave things as they are or whether it will enter the background of the discussion. If the past serves as precedent, in general, the Supreme Court has ruled in favor of the states when there is no law that expressly grants powers to the federal government. This is the case of the existing legislation, where everyone recognizes that it is obsolete, but it is current law and that gives powers to the federal government for the border issue, the problem for Texas being that the Biden administration simply has not wanted to comply with several of their obligations.

It was the White House itself that took the Texas law to court, alleging that the system is based on precedents and in the past, regarding an Arizona case, the Supreme Court itself had determined that the federal government had exclusive powers. However, it was now accepted that the Texas law was valid, accepting their argument that it was their duty to care about the safety of their citizens.

The current situation was further complicated as the Mexican government announced that it would not accept migrants returned by Texas. In general, in the internal debate of the US there is very little understanding of the problems that are created for the neighboring country, with decisions that harm it, in addition to that for various reasons ranging from its own convenience to commercial threats, Mexico has collaborated far beyond what international practices require.

Beyond the fact that the main power is incapable of protecting its sovereignty, the border chaos is created both by the attraction of the United States and by the entry facilities that in practice amount to an invitation, present since the election of the president. Biden who announced and implemented a policy totally opposite to that of President Trump. Furthermore, these migrants not only do not want to stay in Mexico, but in their passage they create security problems for Mexico as well as demand police and social security resources, an imposed cost, and probably if it were the other way around, there would not be this level of collaboration, and on the contrary, we would talk about the right to free transit.

Mexico also suffers from the chaos on this border, above all, the strengthening of the power of the cartels, and there is little understanding of this situation in the US media, which gives a platform to extremist positions that ask to send troops to Mexico.

The incomplete protection of the southern border has in fact handed it over to the cartels, who are the ones who effectively use it, with dire consequences in violation of human rights and sexual abuse of women and children, in addition to negative effects on drug trafficking and national security, as derivatives that will last over time.

A serious problem is not only the number of people arriving from all over the world, but also includes those who enter despite appearing on terrorist lists, which opens up a radically different issue for US security since in In general, immigrants, legal or not, only seek to work to improve their personal and family situation.

The fundamental issue is what was indicated at the beginning, that the United States, through the federal government, is not applying current law, but rather international legislation, much of it present in the United Nations 2030 Agenda, as well as in resolutions. minor entities of international organizations that do not replace national law, but are present in treaties, but the drawback is that they have not been signed. In fact, as a country, the US signs fewer treaties than it is supposed to, sometimes for reasons that have to do with the Supreme Court itself, whose powers it jealously protects by not signing anything that questions its special status of being the last word, which is sometimes restricted in instruments that hand over that ultimate function to international courts.

In this regard, there are various situations that confirm what has been said. This is how the websites of both the State Department and various institutions that have to do with borders and immigration, rather than talking about “illegal” immigration, use the same terminology of international instruments for which that quality does not exist, but rather they are only “irregular”, a situation that disappears immediately when they approach any immigration or police authority at the border, and which explains the behavior of many who enter through there. It is, therefore, a qualification that absolutely changed the entire process.

A second element is found, in something more typical of the United States, such as “sanctuary” cities and states that welcome those who come there to the country, with a series of very attractive benefits for all migrants, such as cards credit for various expenses, a cell phone (with which you can also carry out immigration procedures), accommodation in hotels and others. This second point is not secondary but central to the different vision that international instruments have in relation to US law, since the former require equal conditions, which in specific decisions point to a preference for the newcomer, since By definition, they arrive with what they have, so by demanding equal conditions with the citizen, they will receive more benefits, since for example, by arriving only with a backpack and suitcase, they will generally have fewer goods than a poor local.

This is what has also led to cities like New York and Chicago being given accommodation in hotels with preference over homeless people or schools changing their function to accommodate them, which has generated mobilizations in those cities, which has never happened. It occurred while these many thousands stayed in the border cities of Texas or Arizona. Furthermore, the fact that the criticism also came from Democratic mayors forced many media outlets to report on the magnitude of this immigration, which had previously been hidden.

By the way, declaring yourself a “sanctuary” at a distance is not the same as having immigrants there. This is what happened in one of the meeting places of the elite, as is the case of the very rich Martha's Vineyard in Massachusetts, which barely received 50 sent by an unfriendly trick of a governor of a rival party, rather than giving them The welcome used the national guard for its departure, which is not racism, but classism, another derived from the current immigration process and the debate provoked.

This type of immigration not only takes place in the US but in many countries. In a way, what is happening on the southern border reminds me of the northern border of Chile, a similar situation in the consequences for those who arrive after a trip of many kilometers, and just as there are those who to reach Texas must cross the Darién Jungle, in the case of Chile it has to be done with a desert. Even more, being a country of less than 20 million, the impact of immigration has been greater, including as a percentage of the total population.

This comparison is useful in the sense that, for the same reason, illegal immigrants are immediately going to the nearest authorities, be they immigration institutions or more usually border guards or police, which is why the majority of those who appear in the statistics from the US have not really been “captured” but have voluntarily surrendered. The reason is that, at that very moment, they stop being “illegal” and become just irregular, whose situation stops being a crime and becomes just an administrative procedure, although few expect them to appear at a hearing with a immigration judge for political asylum, with a summons for 10 or more years.

In any case, the claim is similar, whether they are American border guards or Chilean police, that their massiveness prevents them from worrying about surveillance tasks, and rather they are guiding the new arrivals as if they were social workers.

Comparison is always useful to confirm once again a defect, how little is known in the US about what is happening in other countries, in this case, mainly due to the media that have failed to report that this not only It is a US problem but it happens in many places and not just in developed countries. In fact, the world is experiencing a time of large waves of migrants, and many remain in neighboring countries where tragedies occur. This is the case of the Venezuelan emigration, perhaps the largest in the world today, which traveled through a good part of Latin America before reaching the southern border, including the Aragua Train, which is presented in the English-language press in the United States. As if it were a novelty that only affects them, and not as happens in large migrations, where the good, but also some of the bad in crime, leaves the countries. And the world still does not receive the many who in the future will claim asylum for being climate refugees, especially when there is an exaggerated idea of ​​the end of the world.

Among those who arrive in underdeveloped countries are the victims of African crises and civil wars who leave for neighboring countries as well as Afghanistan in Asia which, for a long time, either due to the Taliban or the US invasion, has delivered refugees to Pakistan and Iran, Just as Syrians have arrived in Germany, although more settled in Lebanon. In other words, the problems created for poor countries are less newsworthy, although the consequences are sometimes more serious.

Part of the bad and very bad that happens. It is the attitude of the United Nations and several Human Rights NGOs, which wrongly put pressure on the countries where immigrants want to go, and not on the dictatorships that have caused this emigration, as, for example, occurs with Cuba and Venezuela, whenever these governments should be punished in some way, since this migration, rather than being voluntary, is actually forced migration caused by repression.

Will the Supreme Court concern itself with addressing the entire issue or will it only resolve which sections of the current legislation and the latest Texas law conflict, and which provisions would be unconstitutional in one or the other? We do not know, nor do we know if the ruling will include any opinion on the overlap that has taken place between current US law and subsequent international standards.

By the way, your opinion will be very different in one case or another as well as if you only decide whether you agree with Texas or the federal government. The truth is that nothing forces it or prevents it from taking one path or another, since, from the start, nothing conditioned it to take the Texas case, since unlike other Supreme Courts it is not limited to establishing only the right , and even in its ruling it could set tasks for both the states and the federal government, resolving issues where politicians have not reached agreements, as has happened in the past on such conflictive issues as abortion or racial discrimination.

It will?

In conclusion, in the US, the diversity of Latinos is very confusing, the fact that there are many positions within it, since there is more of a habit of seeing immigrant groups as homogeneous groups, more in terms of ethnicity or race than others. characteristics, an example would be those Afro-descendant Latinos who are defined more by their culture than by their race.

It is also difficult for them to understand what is happening with Latinos today politically, since for a long time there was a vote closer to the Democrats, but the polls show a sustained growth in support for the Republicans, of which the state of Florida is an example, where those who are not Latino understand perfectly that one of the reasons is the issue of the current ambiguity regarding the Venezuelan dictatorship, but they do not easily understand that many Latinos criticize the chaos of the southern border, even if they have relatives or acquaintances. there, without knowing that law and order reasons were always among the reasons why they came to the United States, and both Republicans and Democrats share that lack of understanding.

What I am convinced of is the opportunity that the issue of immigration opens up for the Latino community, in its diversity and complexity. Indeed, today it is the first minority in the country, but there are still many hurdles to be crossed as well as places where those numbers are not felt. For example, political representation is still concentrated in places where there are a lot of Latinos, such as in South Florida or in sectors of Texas or California, but it does not have a greater presence in Hollywood except in Latino roles, just as in advertising it is more in Spanish than in English. Even in political debates on TV, they rarely appear, sometimes not even to discuss the Latino vote.

In my opinion, this is because in general they have not been able to be linked to the solution of a problem that is of general importance for the country, to make the jump to the first division of visibility and relevance. And I believe that the issue of immigration offers that opportunity, one similar to what the issue of Civil Rights was for the African-American minority, which through Martin Luther King was able to offer a solution and obtain the corresponding legislation in the President Johnson's government in the 60s.

The unresolved issue of immigration offers a similar opportunity, providing the US with consensus legislation. This exists today precisely because of the diversity of Latinos, since within them all the different positions coincide, so they can make a proposal that will be well received and even appreciated, since the current polarization prevents Congress from being the place where this conversation and search for consensus is taking place.

In addition, they could complement what the Supreme Court decides.


Ph.D. in Political Science (Essex), Law Degree (Barcelona), Lawyer (U. de Chile), former presidential candidate (Chile, 2013)

«The opinions published herein are the sole responsibility of its author».