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Today’s entry: Why don’t states have rights over who comes into their borders?
Bottom Line: Today’s question is in response to the Biden administration's regular busing of undocumented migrants into Florida. As Governor DeSantis indicated, after being briefed last weekend, Florida’s law enforcement delegation said 70% of all border crossers being brought in by the Biden administration are Florida bound. So, what about our borders? Could Governor DeSantis keep them from coming in? The answer is no, at least with any degree of practicality applied. Especially without an emergency declaration in effect.
Governors have broad authority under the 10th Amendment to restrict intrastate travel, however, they retain no authority to prevent interstate travel. That’s under federal authority. And in fact, the U.S. Supreme Court has specifically ruled on this matter, including the involvement of one who lacked status within a state. In the 1999 case Saenz v. Roe, the Supreme Court Ruled the following: Interstate travel is a fundamental right, and when a state burdens such rights, the challenged law must be both necessary to further a compelling state interest and it must be narrowly tailored to serve that interest. There is a right of free ingress into other States, and egress from them. Now, I’ll walk a little further down this path with you because one might argue that preventing undocumented migrants from being wards of the state would be both a “compelling state interest” and could be “narrowly tailored”. But what would have to happen for attempt this would prove unrealistic.
First, the governor would have to declare a state of emergency pertaining to undocumented migrants being brought into Florida. Next, because the governor can only restrict travel within the state, he’d have to set up interstate checkpoints at Florida’s border. Then the state would have to have a credible method at those checkpoints of determining who lacks status and thus wouldn’t be allowed into the state. You can likely see how unrealistic all of that would be. Starting with the executive order which would be legally challenged, and likely struck down making the rest of the unrealistic hypothetical moot anyway.
States have a lot of rights, but we are “united” after all. The bottom line is that when the federal government fails the country, the entire country is susceptible to failure. That’s the case with the Biden administration's immigration policy. Florida is simply left to try to make the best of a bad situation, which is why for example, we’ve deployed law enforcement personal to the southern border to try to mitigate the impact on us. That’s the border that needs to be enforced here. Not Florida’s with Alabama’s or Georgia’s.
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Email: brianmudd@iheartmedia.com
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