Chip Roy invokes Dred Scott to slam Supreme Court border ruling

Rep. Chip Roy (R-Texas), who has said Texas should ignore the Supreme Court’s order allowing federal authorities to remove barbed wire along the southern border, compared the decision Tuesday to the 1857 high court ruling that upheld slavery.

Roy is among a number of Republicans who have described immigrants crossing the border as an “invasion” and said during a House hearing Tuesday that he will not let “statute books” stop him from defending his home.

The conservative Texan invoked Dred Scott v. Sandford while pressing witnesses over whether state governors could take action to defend their borders.

Omar Jadwat, director of the Immigrant’s Rights Project at the American Civil Liberties Union (ACLU), said they did not when it comes to immigration policy.

“Again, 150 years of Supreme Court precedent says that states do not have the authority to take immigration matters into their own hands,” Jadwat said.

“Was Dred Scott a good opinion that we should follow?” Roy fired back.

“We’re not talking about Dred Scott here — no government has the authority to override that Supreme Court precedent,” Jadwat responded.

In the 1857 ruling, the Supreme Court determined that Dred Scott, an enslaved man, remained the property of his enslaver even in states where slavery had been abolished, and that the Constitution did not recognize citizenship for people of African descent. The Dred Scott decision outraged abolitionists at the time and remains among the Supreme Court’s most notorious rulings.

Roy hammered home his point by asking whether there was any justification for states taking matters into their own hands.

“What amount of death or destruction among the people of Texas or any other state is sufficient to say that the state should take action?” he asked.

Rep. Becca Balint (D-Vt.) said later, “With all due respect to chairman Roy, I believe his call for Texas to ignore the Supreme Court is an endorsement of lawlessness and chaos.”

Fellow Republican members of the House Judiciary’s Subcommittee on the Constitution and Limited Government backed Texas in its ongoing feud with the Biden administration, in which members of the Texas National Guard have been deployed to the border.

Texas Gov. Greg Abbott (R) has ordered law enforcement and National Guard members to place razor wire, buoys and shipping containers along the border to prevent migrant crossings.

The Supreme Court earlier this month ruled that federal authorities can remove concertina wire strung up along the border, spurring Abbott to issue a declaration arguing he has the legal power to overrule federal authorities in case of an “invasion.”

Texas Lt. Gov. Dan Patrick (R) said Monday that Texas will continue to place obstacles despite federal law enforcement removing them.

Roy pointed to Article 1 Section 10 of the Constitution, which provides that no state may engage in war “unless actually invaded, or in such imminent Danger as will not admit of delay.”

Former Arizona Attorney General Mark Brnovich testified at the hearing that the “extensive, well-documented and persistent threat” posed by cartels at the border creates conditions for the states to exercise emergency powers.

Christopher Hajec, director of litigation at the Immigration Reform Law Institute, also argued that because the Biden administration is “attempting to accomplish the opposite of the purpose of federal immigration law,” states can step in to enforce federal law.

Rep. Jerry Nadler (D-N.Y.) pressed Hajec for his definition of “invasion,” raising a federal court ruling that states could not act unless confronted with a military incursion.

“Courts that have said that, in my belief, are wrong,” Hajec said.

Democratic members including Rep. Mary Gay Scanlon (D-Pa.) blasted Abbott’s border action as premised on a “crackpot legal theory” and “an attempt to subvert constitutional order for political purposes.”

Scanlon said that Republicans want to “grandstand in camo at the Rio Grande” ahead of the 2024 election instead of pursuing legislative action in good faith.

Nadler said that “today’s hearing is meant to be one more distraction from [Republican’s] desperation to avoid blame in their utter inability to govern” while they take “marching orders” from former President Trump.

Jadwat of the ACLU called the belief that states can supersede the federal government’s control over the border “profoundly dangerous,” especially under the pretense of war.

“In particular, when you think about the term ‘invasion,’ it paints the so-called invaders as violent, and even more so, it authorizes violence against those people,” he said.

Rep. Tom McClintock (R-Calif.) sided with Democrats on the question of whether immigration counted as an “invasion,” explaining, “this question is the rightful province not of Congress, but of the U.S. Supreme Court.”

He said Republicans could pass a law enshrining their legal theory to make it so.

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