Supreme Court 6-3 Border Ruling: Federalism and Preemption Analysis

Federalism is a governmental system where power is divided between national and regional governments, originating from the Latin word 'fetus' meaning treaty or agreement. In the United States, this system creates a layered structure with federal, state, and local governments. Originally resembling a 'layered cake' with distinct boundaries, American federalism evolved into a 'marble cake' model with mixed and overlapping powers. The Constitution establishes exclusive federal powers including coining money, declaring war, conducting foreign affairs, raising armies, and regulating naturalization and interstate commerce. States retain exclusive powers such as conducting elections, establishing local governments, regulating intrastate commerce, and ratifying constitutional amendments.

American Federalism is based on two core concepts: (1) national and state governments share power, and (2) both derive authority directly from the people. The Constitution creates overlapping spheres of power rather than separate ones, with concurrent powers allowing both levels to address complex issues like food safety. This hybrid system differs from confederacies (where states retain sovereignty) and unitary systems (where states derive power from the national government). American Federalism combines elements of both, with national and state governments existing independently and being accountable only to the people. This structure creates inherent tension as governments disagree about concurrent powers and each other's limits.

American federalism is a system of government where power is divided between the national government and state governments, with the federal government holding enumerated powers (such as coining money, regulating commerce, and declaring war) while states retain reserve powers (such as regulating elections, maintaining militias, and establishing local governments); this division is further shaped by constitutional provisions like the Supremacy Clause (which establishes federal law as supreme over state law), the 10th Amendment (which reserves powers not delegated to the federal government to the states), and the Necessary and Proper Clause (which grants Congress authority to pass laws necessary for executing its enumerated powers), creating a dynamic system that has evolved from dual federalism to cooperative federalism and back to new federalism throughout American history.

Federalism is a form of separation of powers that divides authority between the national government and state governments. Unlike traditional separation of powers that divides authority vertically among branches, federalism creates horizontal division between different levels of government. The federal government operates under limited and enumerated powers granted by the Constitution, while state governments function as governments of general jurisdiction with inherent police powers to protect public health, safety, and welfare. Both levels spend approximately half of total governmental expenditures measured as a percentage of GDP, demonstrating their complementary importance. This structural division enables the United States to govern a vast territory stretching from the Atlantic to the Pacific, encompassing diverse populations and regions.

The plenary power doctrine is a judicially created constitutional principle that grants Congress virtually unlimited authority over immigration and naturalization matters, protecting its substantive decisions from judicial review; this doctrine emerged during the Chinese Exclusion era and is grounded in the inherent sovereignty of the United States, the Commerce Clause, and the Naturalization Clause, allowing Congress to regulate immigration without ordinary constitutional limitations.

Immigration has long been understood as a core federal responsibility because the powers implicated are inherently national in character. Questions of sovereignty, foreign relations, national security, and naturalization cannot be meaningfully divided among 50 separate governments. Decisions about who may enter the country and under what conditions affect the nation as a whole because people travel unrestricted through all states. A uniform code must be the law of the land, and these laws cannot be susceptible to local variation without undermining the concept of national law itself. From the earliest days of the republic, the federal government asserted primary authority over entry, exclusion, and removal. Control over borders is inseparable from the power to conduct foreign affairs, regulate commerce with other nations, and define membership in the political community. States may cooperate with federal authorities, share information, and regulate within their traditional police powers so long as those regulations don't interfere with federal objectives. However, states may not have a parallel immigration system, cannot redefine federal categories, and cannot substitute their own enforcement priorities for those established by Congress and the executive. The distinction between cooperation and independent regulation is where many legal disputes arise.

The plenary power doctrine grants Congress broad authority over immigration, resulting in limited constitutional protections for non-citizens, including minimal due process rights, no right to appointed counsel in deportation proceedings, and limited judicial review, as demonstrated by cases like Wong Wing v. United States (1896) and Arizona v. United States (2012).

In 1889, Chae Chan Ping v. United States established the plenary power doctrine, holding that excluding non-citizens is a matter of national sovereignty beyond ordinary judicial scrutiny. This was reinforced in Fong Yue Ting (1893) and Knauff v. Shaughnessy (1952), which ruled that non-citizens seeking entry have no constitutional right to judicial review beyond what Congress provides. The Immigration Act of 1891 shifted immigration from states to federal jurisdiction and gave executive deportation authority. The McCarran-Walter Act of 1952 moved micromanagement to the executive branch, creating a permanent administrative immigration system where deportation became civil, detention became administrative, and immigration courts fell outside Article III, reinforcing plenary power.

The plenary power doctrine grants Congress and the executive branch wide authority over who enters the United States and who does not. This constitutional principle means that non-citizens seeking entry are not fully protected by the Constitution at the border. The government has broad discretion to determine admissibility, and this authority is not subject to the same constitutional protections that apply to citizens.

The Supreme Court uses a 'shadow docket' or emergency docket to make decisions without full briefing, oral argument, or complete record. These emergency rulings are procedural rather than on the merits. The hosts discuss concerns about lower courts relying on these skimpy decisions, which lack analysis and guidance. Data compiled by the Supreme Court blog shows that 68% of shadow docket rulings with some explanation received citations, and 50% of those with no explanation were also cited, raising concerns about their use as precedent despite the Court's warnings against relying on them.

The Supreme Court's 'emergency docket' is a misnomer because the Court has been accepting and disposing of emergency petitions without any briefing or argument from either side. The Court has telegraphed its view of cases on the merits without full briefs being filed and without oral arguments. This emergency action typically involves stays of lower court decisions. The Court should not have taken any cases on this docket since the beginning of Donald Trump's second term, as there has not been an emergency warranting such action. The Court has been accommodating Donald Trump in a way it would never accommodate any other person or litigant.

The Supreme Court's shadow docket is an emergency review process that allows the Court to issue quick, often unexplained rulings on urgent matters, bypassing the normal lengthy review process with briefs, oral arguments, and detailed written opinions; while originally intended for death penalty cases, it has been expanded in recent years to allow the Court to limit lower court influence and enable faster implementation of presidential policies, raising concerns about judicial oversight and legal consistency.

When lower courts issue emergency rulings, parties may file emergency writs to the Supreme Court for expedited review. Chief Justice John Roberts, who presides over the DC Circuit Court of Appeals, typically refers such cases to the full nine-member Court rather than deciding them himself. The Supreme Court's emergency process, known as the 'shadow docket,' lacks the full briefing, oral argument, and deliberation of regular appeals. However, for momentous issues like Federal Reserve independence, the Court may provide full briefing and oral argument. The emergency stay process involves Roberts first deciding whether to refer the case, then the nine justices voting on whether to grant the stay, with four votes needed to grant and five to deny.

The Supreme Court has been exploiting the shadow docket to benefit the executive branch and President Donald Trump, providing lower courts with one-paragraph decisions instead of full opinions. This has created unprecedented frustration among lower appellate courts who feel left twisting in the wind without proper guidance. Ten or more federal judges anonymously spoke to NBC about their frustrations, and this spilled out into open criticism during oral arguments. Judge James Wyn of the Fourth Circuit directly criticized the Supreme Court during an oral argument, stating they are telling lower courts nothing and leaving them in limbo. The normal Supreme Court process involves developing factual records, full briefing with three briefs, oral argument, and decisions with 30-100 pages of analysis. The Court accepts only 60-70 cases annually from thousands of petitions. This deliberative process is short-circuited on the emergency docket, bypassing full briefing, oral argument, and deliberation. The one-paragraph rulings destroy Fourth Amendment protections, remove nationwide injunctions, and force lower courts to rely on unclear concurrences and dissents. Supreme Court justices Kavanaugh and Gorsuch chastised Judge Young for not following their precedent, with Judge Young explaining that one-paragraph decisions don't allow independent judicial judgment.