If Elected, Can Trump Shut Down the Border? SCOTUS Has Spoken

Ron Chapman II Interviewed by NPR’s Peter Biello on SCOTUS Border Cases

LISTEN: Republicans in Georgia are demanding that President Biden take action after a man who entered the country illegally was arrested for the killing of a woman on the University of Georgia Athens campus last week. But what does the president have the power to do at the border? GPB's Peter Biello speaks with legal analyst Ronald Chapman.

Republicans in Georgia are demanding that President Biden take action after a man who entered the country illegally was arrested for the killing of a woman on the University of Georgia Athens campus last week. But what does the President have the power to do with respect to the border without the approval of Congress?

For more on this, we turn to legal analyst Ronald Chapman. He spoke with GPB’s Peter Biello.

Peter Biello: Some Republicans have called on the president to shut down the U.S. border with Mexico. Could the president unilaterally do that?

Ronald Chapman: Well, we have a precedent for this, Trump v. Hawaii. We all remember that case. It happened right at the outset of COVID. The president's executive order and the ability to close down the borders was challenged. And in that case, the Supreme Court overwhelmingly upheld the president's authority. But what the president is required to do in that instance is show that the immigration challenges the security of the United States. And in that case, Trump had some very specific findings related to that. So the answer is yes, but this power needs to be carefully controlled and can only be exercised when there is a threat to the security of the United States.

Peter Biello: And could the president make a credible argument that those conditions are in place now?

Ronald Chapman: I think that some Republicans are calling for that as a credible argument. They repeatedly cited two undocumented immigrants engaging in certain criminal activity. They're suggesting that terrorists have come across the border. We've seen arguments to that effect, but we really haven't seen evidence or fact-finding related to it. What Trump did in Trump v. Hawaii or before that for his executive order, is he engaged in a study, actual fact-finding related to that, instead of just arguing these points. What Congress would have to do is have specific fact-finding related to a threat that an open border — an open southern border — poses.

Peter Biello: Alternatively, Congress could simply give the president the authority to do something like this, but the political will may not be there right now for whatever reason.

Ronald Chapman: Certainly, I think that regardless of who is in office in the next term, the political will will not be there to allow congressional action on the border. But Trump v. Hawaii really tells us that that may not be necessary. The president is granted broad authority to do what he needs to do on the border. The issue there would be funding. Now, historically, Border Patrol has typically been funded, and Congress doesn't seem to want to revoke that funding. So they have the funding right now to do what they need to do. Obviously, President Biden is calling for additional resources to protect the border.

Peter Biello: Do you see any options for President Biden right now that maybe do something that a lot of Republicans are calling for general taking of action, but maybe falls short of closing the border entirely?

Ronald Chapman: I think, you know, politically, he is protecting himself quite well here by not taking Gov. Greg Abbott's bait and essentially federalizing the National Guard to protect the border. I think right now some additional action by executive order, if he did want to provide additional protections on the border, would be necessary and certainly possible. But I think politically — and, of course, I'm a lawyer, not a politician — but politically, he's in a bit of a bind right now because he's got people on both sides arguing that he should take completely different actions. And I think that his effort in calling for additional funding and not acting until that funding is obtained, is probably the best political move for him at this point.

Peter Biello: What authority do states have right now to regulate their own borders? Where the states' rights come into play?

Ronald Chapman: Yes. I think the important legal question here is the application of states' rights to the border issues. We have, previously Arizona and now Texas, saber-rattling quite a bit and trying to enact their own laws on border controls to essentially create their own Immigration and Customs Enforcement mechanisms and to arrest people who cross the border, as they say, unlawfully. The Supreme Court is about to hear that case, related to the southern border. And I think it's going to be interesting to see if the Supreme Court holds to their decision in the Arizona case or, if this different Supreme Court is going to allow more state authority. I suspect that they will allow more state authority, because if you read that Arizona decision, you will see Justice Clarence Thomas and some of the other, notably conservative justices seem to allow more states rights on the border. But the composition of the court still kind of adhered to executive authority. And so the president has more power. I think that states will get more power on that border pretty quickly as a result of the current composition of the Supreme Court when they hear that Texas case.

Four Supreme Court Cases Every Citizen Must Know About the Border

As Governor Greg Abbott and President Biden, square dance over actions at the southern border, let’s take a walk-through history and discuss a few Supreme Court border cases that everyone should know.

I seem to be bombarded by videos of people at the United States border, refusing to answer questions, suggesting that a border stop is unlawful, and questioning the authority of agents to ask about citizenship. The cases below, give a profound amount of information as to why border control has run the way it is.

The legal history regarding the southern border with Mexico, particularly as it involves the U.S. Supreme Court, intertwines complex issues of immigration law, executive power, and federal versus state authority. Here are some key cases and decisions that highlight this history:

1. United States v. Brignoni-Ponce (1975): This case addressed the Fourth Amendment rights concerning the stopping of a vehicle near the U.S.-Mexico border based on the occupants’ apparent Mexican ancestry. The Supreme Court ruled that the roving patrol stops require reasonable suspicion of a violation of the immigration laws, not just the appearance of being of Mexican descent.

2. Plyler v. Doe (1982): This decision tackled the rights of undocumented immigrant children to receive a free public education. The Court held that states cannot deny students a free public education on account of their immigration status, citing that such a policy violates the Equal Protection Clause of the Fourteenth Amendment.

3. Arizona v. United States (2012): This case was a significant Supreme Court decision regarding state versus federal power over immigration. The Court struck down several provisions of Arizona’s SB 1070, a strict anti-immigration law, ruling that the federal government has broad, preeminent power in immigration policy. The Court allowed one provision to stand, which required police officers to determine the immigration status of someone arrested or detained when there is “reasonable suspicion” they are not legally in the U.S.

4. Trump v. Hawaii (2018): This case examined President Donald Trump’s executive order to impose travel restrictions on citizens from several predominantly Muslim countries and was significant for its broader implications on the President’s power to control immigration at the borders for national security reasons. The Supreme Court upheld the travel ban, stating that the President has broad discretion under the Immigration and Nationality Act to suspend the entry of noncitizens into the United States.

Political determinations over the years, from the construction of barriers and walls to the deployment of national guard troops and the implementation of various policies such as “Remain in Mexico” under the Trump administration, have also been significant. These actions often prompt legal challenges, leading to further Supreme Court cases or lower court rulings.

These cases, among others, illustrate the ongoing legal and political debates over how best to manage and control the southern border, balancing security, humanitarian, and immigration concerns within the framework of U.S. law and constitutional protections.