Abbott claims "sovereign authority" over border security, but Supreme Court precedent isn't so clear

AUSTIN, Texas — Amidst the Department of Justice lawsuit over Governor Greg Abbott's floating barrier in the Rio Grande, Governor Greg Abbott has repeatedly claimed Texas has "sovereign authority" over border security measures within Texas. Legal precedent indicates otherwise, though it could shift depending on the courts' stances on this lawsuit.

The U.S. Constitution doesn't have a strong stance either way as to whether border security falls under state versus federal jurisdiction. In Article IV, Section 4, the Constitution reads, "The United States... shall protect each of [the States] against Invasion."

Since then, it's fallen largely on the U.S. Supreme Court to determine where authority over the border falls. Largely, they have sided with the federal government, including most recently in 2012 with the case Arizona v. United States.

In that case, Arizona had passed a state law, which increased the powers of local law enforcement to enforce immigration law. The Supreme Court overturned four separate provisions in that law, arguing that enforcement of immigration law falls under the jurisdiction of the United States.

"Even five years ago, I would say that the governor's argument is just unequivocal nonsense," Sanford Levinson, a constitutional law professor at the University of Texas, said. "That is to say, the United States of America overrides the claims of states with in almost all respects."

In that time, though, the Supreme Court, and many federal courts, have made a rightward shift in opinion. As such, some prominent Republicans have called for a new Supreme Court case to reevaluate authority over border security.

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"I have no doubt that traditional law would say that it is the United States that controls what happens at the border, including the Rio Grande River, rather than Arizona, or Texas, or whatever," Levinson said. "But we have a remarkable Supreme Court right now; a remarkable Fifth Circuit; there are some remarkable district judges who have done remarkable things in the last year. So as an academic, I would say that I'm really hesitant."

Governor Abbott has indicated on more than one occasion, and as recently as Thursday, that he intends for this case to reach the Supreme Court.

"Governor Greg Abbott's hostility towards the federal government is really a large part of his political identity," Joshua Blank, research director for the Texas Politics Project, said. "And so this is really a continuation of a political profile that he trailblazed a number of years ago but that now feels to be just sort of a regular part of the Texas political routine."

Interestingly, within the state's legal brief in opposition to an injunction over the border buoys, the notion of "sovereign authority" is only the third legal argument presented by the state, taking somewhat of a backseat to the Attorney General's Office's other arguments pertaining to navigability of the river in reference to the buoys.

"No matter what, this conflict is going to end up before the Supreme Court," Blank said. "And I think the reality is that it's very, very difficult at this point, even on a court that we consider to be more politicized than maybe we have in the past, to really handicap how the court is going to interpret Texas's legal challenges, because it is, in some ways, a pretty large challenge to federal authority."

The Department of Justice has requested a federal judge grant an injunction in the case, which could pose the first test to that hypothesis. If the injunction is granted, Texas will likely appeal; and it's not entirely outside the realm of possibilities that the Supreme Court could weigh in on an injunction.

Both parties will appear before a Travis County court on August 22.