The 14th Amendment explicitly ensures that states cannot treat similarly situated individuals differently. The Fifth Amendment implicitly ensures that the federal government also cannot treat similarly situated individuals differently. It seems to me that an argument can be made that the executive branch of the federal government also cannot treat similarly situated political entities (states and cities) differently. If that’s correct, the Biden administration cannot simultaneously allow sanctuary regions to violate immigration law by hiding illegal aliens while insisting that Texas may not violate immigration law by preventing people from illegally entering America.

When Congress ratified the 14th Amendment, it included an explicit equal protection clause to ensure that the recently defeated Confederate states did not treat black and white residents differently:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Emphasis added.]

For almost 100 years, Democrats in those same states ignored that prohibition until the Civil Rights Act gave it teeth. Now, one can argue that Democrats continue to ignore that prohibition when it comes to political activity, prosecuting those with whom they disagree and giving a pass to those whose ideas they support. But I digress…

The 14th Amendment does not apply to the federal government itself. However, the Supreme Court has held that the Fifth Amendment’s due process clause fulfills much the same function. To refresh your recollection, the Fifth Amendment states that,

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. [Emphasis added.]

Thus, in 1954’s Bolling v. Sharpe, which addressed segregated schools in D.C., the plaintiffs argued that racial differences in access to public school were a denial of due process. The Supreme Court agreed, noting that the due process clause applied to federal policies and citing several earlier cases to support that principle.

Both those concepts about equal application of the law apply to individual citizens. It occurred to me, though, that the same principle should extend to a presidential administration’s treatment of political entities, especially states. That is, no administration should be able to claim total federal supremacy as to one state while waiving that same supremacy as to another.

The Constitution never explicitly states that the federal government must treat the states equally. It does say, however, that federal laws are the “supreme Law of the Land” (Art. VI, Clause 2) and take precedence over conflicting state laws. Control over immigration is one of those supreme laws.

The Biden administration has unequivocally asserted the Supremacy Clause regarding Texas. It argues that Texas may not engage in any conduct affecting immigration if that conduct conflicts with Biden’s policies.

Of course, at Art. IV, Clause 4, the federal government guarantees that it “shall protect each of them [the individual states] against Invasion,” something the Biden administration has signally failed to do. The Constitution does not address a state’s rights when the federal government violates this obligation. But back to the Supremacy Clause and immigration.

My beef with the Biden administration’s position is that, if it claims that the federal government is the only entity in America that has a say in enforcing immigration policies, it cannot then allow the continued existence of multiple “sanctuary” states and cities across America that blatantly violate immigration laws. Thus, California, Colorado, Connecticut, Illinois, Massachusetts, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington have declared that they are no longer bound by immigration laws. Likewise, dozens of cities across America have made the same declaration. They, too, are challenging federal supremacy when it comes to federal immigration legislation.

Biden’s administration, however, has been supine in the face of these blatant violations of federal control over immigration policy. Sadly, Trump’s administration was as well. However, at least Trump wasn’t claiming that he could simultaneously assert federal dominance over states with policies that are the opposite of sanctuary states and cities insofar as they try to keep illegal aliens from crossing into America.

If you look at the battles that went into creating our Constitution (which is a contract between the federal government and the states and, via the Bill of Rights, between the federal government and individual citizens), you know that the Founders were fanatic about limiting the federal government in favor of the states’ rights. They would have balked at any reading of the Constitution that allowed a president to augment federal power by playing favorites under the Supremacy Clause.

I’m not a constitutional scholar and I lack access to legal research software, so anyone can feel free to chime in with information proving me wrong. However, it feels intuitively right to say that the Biden administration is violating an implied equal protection clause vis-à-vis the states when he engages in unequal enforcement of immigration policies against states, depending on whether he agrees with a specific state’s approach to illegal immigration.

Image: Federal agents remove razor wire along the Texas border (edited). YouTube screen grab.