Texas v. The Federal Government: The Tenth Amendment Case That Could Reshape Federalism

The Case

The text admits of no other interpretation. The Tenth Amendment reserves to the states those powers not delegated to the federal government. And while immigration enforcement is a federal responsibility, the question Texas poses is more precise: when the federal government refuses to exercise that responsibility, does a state have the constitutional authority to act in its stead?

Texas v. United States, currently before the Fifth Circuit, argues yes. The state contends that the federal government's deliberate non-enforcement of immigration law constitutes an abdication that activates the state's inherent police powers and its constitutional right to self-defense under Article I, Section 10.

The legal theory is novel but grounded in text. Article I, Section 10 prohibits states from engaging in war "unless actually invaded, or in such imminent Danger as will not admit of delay." Texas argues that 187,000 monthly border encounters constitute the functional equivalent of invasion.

The Historical Context

The relationship between federal supremacy and state sovereignty has been contested since the founding. The Tenth Amendment was included precisely because the Anti-Federalists feared that a strong central government would subsume state authority. Madison, Hamilton, and Jay spent much of the Federalist Papers arguing this would not happen.

Two centuries later, the administrative state exercises powers over areas the Founders never contemplated delegating to the federal government. Education, healthcare, environmental regulation, and land use — all areas historically governed by states — have been substantially federalized through the commerce clause and the spending power.

Texas's border case may be the vehicle that tests whether the pendulum swings back.

The Implications

If the Fifth Circuit — and potentially the Supreme Court — rules that states retain enforcement authority when the federal government refuses to act, the implications extend far beyond immigration. The principle would apply to any area where federal non-enforcement creates harm that states must bear.

Environmental enforcement. Drug trafficking interdiction. Regulatory compliance. Any domain where federal agencies have the authority to act but choose not to.

This is not, as some have suggested, a case about immigration policy. It is a case about constitutional structure — about whether the federal government's power to act in an area also encompasses the power to prevent states from acting when it won't.

What to Watch

The Fifth Circuit's decision is expected by summer. The panel composition favors textualist interpretation. But regardless of the outcome at the circuit level, this case is almost certainly headed to the Supreme Court, where it will intersect with the current Court's interest in reinvigorating structural constitutional limits on federal power.

The Founders gave us a republic with divided sovereignty. Texas is asking the courts to enforce that division. The answer will shape the next generation of American federalism.