Police Power: Antebellum Antecedents in the Modern Immigration Conflict

This article examines the modern U.S. immigration conflict through the lens of nineteenth-century state-level immigration policy to show how Texas Governor Greg Abbott is reviving Antebellum concepts of state sovereignty to upend federal supremacy on immigration. Incorporating historical texts, case law, and newspaper articles, this article argues that Texas's new policies are a legal revival of police power—the ability to regulate the internal affairs of a state for the sake of general welfare—as it existed in the nineteenth century, when immigration could be legislated at the state level. With his busing program, increased criminalization, and citing an invasion, Governor Abbott is attempting to expand state police power to include immigration once again, just as it did in the Antebellum era. While the constitutionality of Texas S.B. 4—the bill which Texas's power expansion depends on—has yet to be ruled on at the time of writing this article, its passing would represent a complete overturning of the state-federal balance, in place since the end of the Civil War, when it comes to immigration.