Texas and the Perpetual Crisis of American Federalism
By asserting its right to pursue an immigration policy at odds with that of the US federal government, Texas is reviving a constitutional debate that recurred throughout the early nineteenth century, culminating in the Civil War. It is an ominous reminder that the perpetuation of the Union can never be taken for granted.
The Truth About US Immigration
It is possible both to maximize the benefits of immigration while still maintaining border security and supporting workers in sectors that immigrants may enter. If US politicians are serious about serving the American people’s interests, they will abandon the overheated rhetoric and start doing their jobs.
CHICAGO – It is becoming increasingly apparent that immigration will be a major issue for voters in this year’s US presidential election. Since President Joe Biden took office in 2021, more than 6.2 million people who did not have permission to enter the United States have attempted to cross the border from Mexico, and more than two million have been allowed to remain while they await an immigration hearing.
This marked increase from previous years has become a major source of controversy. While Biden’s critics claim – dubiously – that immigrants are driving up crime rates and taking Americans’ jobs, some Democrats are doubling down on calls to decriminalize illegal border crossings altogether. The first group accuses the second of undermining national security, while advocates of decriminalization accuse immigration hardliners of racism and xenophobia. With Americans arguably more divided than at any time since the Civil War, US politicians are peddling simplistic rhetoric about an immensely complex issue to stoke fear and anger, deepening the country’s political polarization.
But there is good news for the American people: The truth about immigration is far less frightening than what some politicians and media figures want you to believe. For starters, immigrants are much less likely to commit crime than US citizens. Nationwide, illegal immigrants tend to be incarcerated at a much lower rate than native-born Americans. In Texas, for example, illegal immigrants, in 2018, were 45% less likely to be convicted of a crime than native-born Americans. And the crime and incarceration rates for legal immigrants are even lower.
Republicans often point to a 2021 US Department of Justice report showing that federal arrests of non-US citizens increased by 234% between 1998 and 2018, while those of US citizens rose by only 10%. But this increase was driven entirely by arrests for immigration-related offenses. If those are removed, arrest rates of non-citizens increased by only 5.1%. In other words, when it comes to crimes that Americans can also be arrested for – such as theft or assault – the increase was lower for immigrants than it was for citizens.
But the other side of the debate also deserves some criticism. There is nothing necessarily xenophobic or bigoted about wanting to strengthen border security. Every country has a legitimate interest in controlling who enters its territory, just as every family has a right to decide who may enter their home. You can open your arms to your neighbors without removing the locks from your doors. This is common sense.
Immigration need not be a partisan issue. During Barack Obama’s presidency (when Biden was vice president), the US deported more than 5.3 million people, or around 2.65 million per term, which is more than the two million deported during Donald Trump’s one term.
Nor is the economic relationship between immigrants and natives as “zero-sum” as many assume. Although immigrants do compete with some Americans for jobs, the benefits they bring far outweigh the harms. One such benefit is tamer inflation. With around three job openings for every two job seekers, America urgently needs more immigrant labor. Industries such as construction, agriculture, and hospitality consistently rely on immigrants. When these jobs go unfilled, restaurants and other small businesses serve fewer people, and fewer homes are built. These outcomes translate into higher prices for Americans and lower US competitiveness vis-à-vis other economies such as China.
Economists typically find that immigration expands overall opportunities, raises wages, and lowers prices. After all, if a factory in the US cannot find workers at globally competitive wages, it will go out of business or move to a location where labor is cheaper – such as Mexico or China. Low-wage immigrant labor not only helps to keep the factory in the US. It also means that there will be more workers paying for housing, food, health care, and consumer goods, thus creating more jobs and raising wages for other American workers.
For demographic reasons, America’s need for immigrant labor will only increase over time. In 2008, the US fertility rate dropped below the replacement level of 2.1 children per woman of child-bearing age, and it has been falling steadily over the past decade, reaching 1.7 in 2021. Fewer births mean fewer workers in the future. An ever-smaller working population will have to support a larger retired population.
One concern is that low fertility leads to economic stagnation. Japan’s fertility rate dropped below replacement level in the 1970s, and its GDP and average income both stopped growing by the mid-1990s – not least because it remained wholly opposed to immigration. In China, now the world’s second-largest economy, low fertility has become one of the biggest challenges for long-run growth.
The US has long been an exception precisely because its openness to immigrants has allowed it to keep growing robustly despite falling fertility. A steady stream of mostly healthy, young, eager workers from abroad has been key to maintaining economic dynamism. When managed properly, immigration benefits immigrants and native-born citizens alike.
But proper management calls for a thoughtful, evidence-based discussion, not hysterics. When cooler heads prevail, it is possible both to maximize the benefits of immigration while still maintaining border security and supporting workers in sectors that immigrants may enter. If US politicians are serious about serving the American people’s interests, they will abandon the overheated rhetoric and start doing their jobs.
America Needs More Immigration
Immigration has become a political football in the United States just as its economic benefits are becoming more apparent. Instead of getting caught up in unproductive debates about immigration’s adverse effects, public policy should focus on determining its optimal rate and expanding the US workforce by facilitating legal entry.
WASHINGTON, DC – With an unprecedented number of migrants and asylum seekers trying to enter the United States through its southern border, immigration is at the top of American voters’ minds ahead of November’s presidential election. Paradoxically, this debate has gained momentum just as the US economy outperforms other developed economies, partly owing to immigration-fueled population growth.
The Japanese economy should serve as a cautionary tale about the perils of opposing immigration. After growing rapidly following the end of World War II, Japan’s population peaked at 128.1 million in 2010. It had dropped to 124 million by early 2024 and is expected to decline further, falling below 100 million by 2055.
Japan’s economic stagnation since the 1990s can be partly attributed to its demographic challenges, as its working-age population declined from 86.8 million in 1993 to 81.5 million in 2010. While initially opposed to immigration, Japan eventually introduced various incentives to encourage it. But these measures have yielded only modest results, and the country’s population continues to shrink.
Japan is not alone. Numerous developed and developing countries, including China, are also grappling with shrinking populations. In South Korea, the speaker of the National Assembly recently described the country’s low birth rate as a “national crisis.” The European Union’s working-age population is projected to decline by 20% by 2050. Even in Africa, the only continent expected to experience strong population growth this century, the rate of increase is expected to slow.
Meanwhile, according to the US Census Bureau’s “main immigration” projection, America’s working-age population will only be 2% larger by 2035. By contrast, in a “zero immigration” scenario, the American workforce would decrease by 5%, with the US population shrinking by 32% by 2100.
A shrinking population and labor force can impede economic growth by redirecting investment from new capital goods, which boost worker productivity, toward replacing workers. Moreover, the average educational attainments of new entrants to the labor force exceed those of retirees, implying that retirees tend to be less educated and trained than those entering the workforce. When there are fewer new labor-market entrants than retirees, productivity can be adversely affected. In such a scenario, demand for health care and pensions grows faster than the overall population.
While the number of native-born American workers has dropped since 2019, the overall labor force has grown by 2%, thanks to immigration. The Congressional Budget Office estimates that high immigration rates could add 0.2 percentage points to average annual GDP growth over the coming decade.
Regrettably, immigration is becoming increasingly unpopular just as its economic effects are becoming greater. Immigrants, who often arrive at a young age, bring essential intermediate skills necessary for industries like health care, construction, and hospitality. But nurses and construction workers are not just crucial for replacing retiring seniors; they also enhance the productivity of highly skilled professionals, including doctors, engineers, and educators. Thus, welcoming more immigrants could boost US output growth.
Amid historically low unemployment and persistent labor shortages, it is ludicrous to claim that migrants are “taking away” American jobs. Similarly, there is little evidence supporting the far-right populist claim that immigrants are more likely to commit crimes. On the contrary, studies have repeatedly shown that immigrants tend to be more law-abiding than native-born Americans.
Despite potential short-term disruptions, immigration is economically beneficial to host countries over the long term. Rather than engaging in unproductive debates about immigration’s adverse effects, US public-policy debates should be focused on determining its optimal rate, ensuring legality, fostering seamless integration, and boosting productivity. Additionally, policymakers ought to explore ways to promote economic growth and raise income levels in the countries from which migrants and asylum seekers originate.
Even current immigration levels may not be enough to offset America’s population decline, given that the US fertility rate fell from 2.1 lifetime births per woman in 2007 to 1.64 in 2020. To maintain the current size of the US workforce, the US would have to accept 1.6 million immigrants – equivalent to 0.5% of its population – annually. Without immigration, the population and labor force would shrink by roughly 0.5% per year.
As more countries recognize the urgent need to augment their dwindling native-born workforces, the competition to attract immigrants is bound to intensify. To avoid a Japan-style period of economic stagnation, the political debate across the developed world must shift toward facilitating legal entry and adopting more effective immigration policies.
Eastern Europe Needs a New Immigration Narrative
Central and Eastern European political leaders have long taken a “tough on migration” stance. But because the region needs more foreign workers, they must now make a positive case for immigration – publicly and repeatedly – to convince their voters that all will gain from the economic benefits newcomers generate.
BRATISLAVA – Central and Eastern European (CEE) governments have long prided themselves on their tough migration policies. Over the past decades, many of the region’s political leaders have focused their efforts on curbing the flow of migrants and asylum seekers, contending that an influx of third-country nationals would undermine social stability, threaten cultural cohesion, and even pose a security risk.
For example, in 2015, at the height of the European Union’s migration crisis, the four Visegrád (V4) countries (the Czech Republic, Hungary, Poland, and Slovakia) vehemently opposed the bloc’s refugee-quota system, which aimed to share the burden by allocating a certain number of asylum seekers to each EU country based on population, GDP, and other factors. Hungary and Slovakia were among the most vocal critics of the plan, arguing that mandatory quotas were an attack on national sovereignty.
To be sure, CEE countries – most notably, Poland and the Czech Republic – welcomed millions of Ukrainians driven out of their homes by the Russian invasion in 2022. But despite this generosity, V4 leaders have continued to take a tough line on migration. Hungarian Prime Minister Viktor Orbán – a self-declared champion of Europe’s Christian values – promotes a vision of a homogeneous Hungarian society. Hungary granted refugee status to only ten individuals in 2022, earning a rebuke from the EU’s top court. In Slovakia, Prime Minister Robert Fico’s left-populist Smer-Social Democracy party won last year’s election by exploiting resentment against Ukrainian refugees. And the region recently stepped up efforts to stop illegal immigration through the Balkans by introducing stricter controls and deploying security forces to patrol borders.
A negative narrative about migrants has helped leaders such as Orbán and Fico consolidate electoral support by playing on voters’ fears of otherness, economic anxiety, and desire for stability in an unsettled world. But that does not change the fact that the region is facing an acute shortage of skilled workers – a pressing issue on which politicians have remained largely silent.
In fact, CEE countries are increasingly liberalizing their immigration rules and procedures to enable the entry and employment of foreigners. In January, Hungary, seeking to attract applicants from third countries, fast-tracked a new immigration law that introduces new short-term guest and skilled-worker visas. The inter-ministerial effort was accompanied by new outsourcing contracts to improve the efficiency of visa processing in countries such as Oman, Qatar, and Uzbekistan.
Hungary has little choice. With a rapidly aging population, severe labor shortages in the coming years would hamper the government’s ambition to become an electric-vehicle (EV) manufacturing hub and defense industrial base. In 2022, China’s CATL announced that it would build a €7.3 billion ($7.9 billion) EV battery plant in Hungary, the largest such investment in Europe to date. In 2023, China’s BYD shared its plans to open an EV factory in the country – its first in Europe. The German defense contractor Rheinmetall recently opened a new factory in the Hungarian city of Zalaegerszeg, while armored tactical vehicles are to be produced in the city of Győr. All of these ventures will require sufficient human capital.
The Czech Republic has also sought to attract third-country nationals, including in September 2022, when it simplified the recruitment process for “critically needed” workers and improved oversight of working conditions for foreigners. Last summer, the country aligned its laws with the EU Blue Card Directive, which governs entry and residence conditions for highly qualified workers from third countries. Meanwhile, in 2019, Poland made it easier for holders of temporary residence and work permits who are pursuing a profession deemed desirable for the Polish economy to acquire permanent residence.
Likewise, the number of foreign workers in Slovakia increased seven-fold between 2013 and 2022, with some manufacturers, such as the British carmaker Jaguar Land Rover, relying heavily on labor from abroad. And more of these workers are coming from farther away – from, say, India or Kazakhstan, rather than Serbia or Ukraine. But there are still more than 80,000 long-term, unfilled vacancies, especially in the mechanical engineering, automotive, transport, health-care, and IT sectors.
The labor shortage is likely to worsen: demand for skills in the industries of the future is only increasing, at the same time as fertility rates are declining, and young people are leaving the region to pursue better opportunities elsewhere. To plug these competency gaps, CEE countries must continue to reform their immigration policies. Failure to do so could result in widespread economic pain, as they may miss out on new investments that could generate GDP growth and raise tax revenue.
The question is not whether immigration is good or bad, but how it can yield benefits for both destination countries and third-country workers. Policymakers’ primary goal should be to maximize the gains from immigration, which will require consulting with the private sector to continue identifying the skills that are needed. Existing tools, such as the EU Blue Card, have been somewhat successful in addressing labor shortages but would benefit from streamlining procedures and harmonizing criteria across the bloc’s member states. Moreover, introducing new global skills schemes – especially with non-EU countries – that address current and future labor-market needs could facilitate economic migration while reducing brain drain at home.
CEE governments’ performative hostility toward migrants cannot disguise their desperate need for foreign workers. Political leaders must now make a positive case for immigration – publicly and repeatedly – to convince their voters that all will gain from the economic benefits newcomers generate.
Why Is Europe Moving Rightward?
The surge of support for right-wing parties across Europe cannot be explained as the result of above-average immigration figures or dire economic conditions. Instead, European voters seem to be reacting to geopolitical turmoil and the sense that the prevailing political order is on its way out.
ROME – In the run-up to the European Parliament elections this June, the nativist right seems poised to gain ground across the continent, especially in key countries. Though the chauvinist wave extends from Portugal to Scandinavia, it is being driven mainly by right-wing parties in five core EU members that rejected nationalism more than 70 years ago.
In Italy, a politician with a neo-fascist background, Giorgia Meloni, has been prime minister since 2022 and remains popular. In the Netherlands, the radical xenophobe Geert Wilders’s party came in first in the election last November and also remains popular (though it has failed to win enough support from other parties to form a government).
In France, Marine Le Pen’s National Rally is the front-runner, with nearly 30% approval. In Belgium, the far-right Flemish party Vlaams Belang is ahead and surging in the polls. And in Germany, Alternative für Deutschland (AfD) has emerged as the second-strongest party. Among the European Union’s original members, only tiny Luxembourg still boasts a strong centrist politics.
True, some of these parties have barely disguised racist agendas, whereas others have managed to establish respectable conservative reputations. Meloni has been pro-Western in her foreign policy and seemingly pragmatic in her day-to-day domestic dealings. Her strategy of moderation has been so successful that Le Pen is now openly emulating it. The AfD, by contrast, has doubled down on extremism.
Nonetheless, when asked recently about the common factors propelling right-wing forces across Europe, Meloni did not mince words: “Clearly, Europe’s answers to citizens are not working.”
But is this true? Immigration, economic hardship, and rising inequality are generally what drive voters to the extremes, but these problems have all subsided somewhat in recent years. Asylum seekers’ arrivals are currently well below the last decade’s average, and European societies welcomed millions of Ukrainian refugees without much controversy.
Nor do economic factors explain current opinion polls. Though inflation has dented purchasing power, especially in Italy and Germany, the EU experienced far worse economic conditions after the 2008 financial crisis. Employment today is at a multi-decade peak in most EU countries, including the founding members, and inequality has also somewhat moderated. In France, the Gini index (which measures income inequality) has been falling since 2010, and similar trends can be found across most other core EU countries.
There will always be reasons for economic and political dissatisfaction. In the Netherlands, some voters worry that immigrants will burden the welfare system and compete for scarce affordable housing. Italy has long suffered from economic malaise and weak growth, and Germany increasingly looks like the sick man of the world economy.
So, some other undercurrent must be propelling the nationalist right’s widespread appeal. One clue is that most of the hard-right parties – regardless of whether they are pro-Russia or not – started surging noticeably in the polls after Vladimir Putin ordered his full-scale invasion of Ukraine. That may have triggered a reaction beyond the immediate sense of insecurity, as Europeans awoke to the potential unraveling of the post-Cold War political order.
European political orders have always drawn their legitimacy not just from power or institutions, but also from shared values. At least since the Congress of Vienna (1814-15), the “unifying force” in European politics, as Henry Kissinger saw it, was the collective belief in the system’s ideals. Thus, the political order of Metternich’s Europe rested on monarchs who agreed on the need to suppress bourgeois ideals. Post-Versailles (1919) Europe, by contrast, never achieved much ideological unity or shared sense of legitimacy, ending in the absolute disorder of a world war.
After World War II, a unifying force returned to (western) Europe in the form of the Cold War, when the goal was to minimize Soviet influence and pursue continuous, albeit slow, economic integration. After the fall of the Berlin Wall in 1989, creating a united – and politically and economically liberal – Europe became the mission. Europeans even wagered that they could influence the rest of the world through the “Brussels effect,” a regulatory floor that attracts global compliance in the interest of simplicity. The bloc’s overall strategy reflected underlying values that gained traction among the public when it delivered stability and prosperity.
But now, Putin’s war on Ukraine, turmoil in the Middle East, and the prospect of Donald Trump’s return to the White House are weakening the pillars of European stability. Sensing a sea change, voters are turning to parties that don’t traditionally identify with the system. Fears that the post-1989 order is crumbling have led voters to ask themselves: “Are we really on the right side of history, as we were told? Were we lied to?”
Recent geopolitical changes thus have eroded the system’s perceived legitimacy. Russia’s assault on Ukraine made clear that Europe is only partly sovereign, and the vaunted “Brussels effect” has failed to materialize in the global net-zero transition. Other large countries ignore Europe’s claim to climate leadership, because they know that it lacks the necessary technological prowess. And on migration, the EU has consistently failed to find a common approach to addressing the issue vis-à-vis countries of origin.
True, nativists like Meloni sometimes appear to become more moderate once in power. But rather than embracing the system’s values, they may be subtly changing them. While presenting herself as reassuringly urbane, articulate, and supportive of Ukraine, Meloni has quietly staffed every bureaucratic post available with party loyalists. Moreover, she is pushing a constitutional reform that looks like a power grab (it would severely downgrade both the president and the parliament), as well as forgingalliances with unsavory figures such the French xenophobe Éric Zemmour, and the Spanish far-right leader Santiago Abascal. She has also been on good terms with Hungarian Prime Minister Viktor Orbán, although she is critical of his pro-Russia leanings.
The Meloni model is starting to look like a template for the nationalist right to win office and then change the EU from within. But if geopolitical insecurity is indeed at the heart of Europe’s right-wing turn, those who oppose it must recognize that the EU cannot be defended on the basis of the status quo. They will need to make the case that security and sovereignty require even greater political integration.
CHICAGO – By claiming that it has the power to enforce its own immigration policy, even when that policy conflicts with federal law, Texas has reignited a debate about federalism that is as old as the United States itself. But with so many commentators invoking the past to justify their positions, it is crucial to get the history right.
Many cite the Civil War as an analogy to – and a cautionary tale for – the current moment. But the more accurate benchmark is not the war itself; it is the five decades of simmering constitutional conflict that preceded the war’s outbreak. The similarities between those years and today should be a warning to us all. Demands for states’ rights are what Thomas Jefferson described (in 1820) as a “fire bell in the night,” threatening to sound the “knell of the Union.”
On the eve of the Civil War, US President Abraham Lincoln proclaimed in his first inaugural address that “the Union of these States is perpetual.” But he might well have said, “Conflict about the structure of the Union is perpetual”: so it had been ever since the Constitution’s drafters laid down their pens in 1787.
Between 1815 and 1861 – what I call the interbellum period – arguments about the nature of the Union dominated US political and legal debates. Americans, living under multiple governments, frequently talked (and sometimes fought) about which government had the power to tell them what to do, especially when it came to the issues of commerce, migration, and slavery.
Today we use the term federalism to refer to the relationship between the states and the national government. When the Constitution established the American version of federalism, the underlying idea was not new. It drew on European political theory and the colonists’ practical experience of living as subjects of the British Empire. What was novel was the embrace of multilayered government as an ideal, rather than as a defect. Founders such as James Madison saw a structure that was “partly federal and partly national” as the best means of achieving the goal of a “well constructed Union.”
Though the ideal of a federal union was compelling, the founders left its content unsettled. When Americans in the early nineteenth century started to argue about new political questions that seemed to implicate federalism, they could not look to the founders for clear, straightforward answers. The founders had bequeathed only an idea, which later generations would have to think through for themselves.
This was an era of rapid change. The US experienced a market revolution as transportation and trade networks expanded along with the country’s territory (and as indigenous nations and rival European powers were pushed out). While slavery became further entrenched in the South and ignited clashes over expansion to newly admitted western states, national institutions (such as the Bank of the United States, the post office, and the federal courts) stretched the ligaments of federal power more broadly – and more deeply into people’s everyday lives. Early-nineteenth-century Americans thus faced pressing problems for which their forebears had left only a sketchy map.
Many of the most significant interbellum constitutional debates were struggles about which government controlled overlapping domains of power. Moreover, interbellum Americans tended to regard this conflict as being consistent with the design of the system. “It must have been foreseen that controversies would sometimes arise as to the boundaries of the two jurisdictions,” wrote Virginia judge William H. Cabell in 1815, objecting to the Supreme Court’s efforts to overturn a decision of the state high court. “Yet the Constitution has provided no umpire, has erected no tribunal by which they shall be settled.”
The argument that a state had the power to determine for itself the boundaries between its jurisdiction and that of the federal government recurred throughout the early nineteenth century. Most famously, in 1832, South Carolina declared two of Congress’s tariff laws “null and void,” and forbade both state and federal officials from enforcing the acts “within the limits of this State.” The same ordinance also prohibited challenges to nullification that relied on appealing a case from the state’s highest court to the US Supreme Court. By declaring the congressional tariff laws void, barring enforcement by revenue officials, and prohibiting the Court’s review, nullification sought to cut the state loose from all three branches of the federal government.
Claims of states’ rights proliferated in the interbellum period, and not only as a means of advancing a proslavery agenda. In the 1840s and 1850s, northern and midwestern states invoked state sovereignty as a shield against the reach of Congress’s fugitive-slave laws. Massachusetts, Pennsylvania, and Wisconsin each passed “personal liberty” laws to protect Black residents from being forcibly removed.
In response to the fugitive-rendition process dictated by federal statute, these states explicitly positioned themselves as nullifiers. An 1854 Anti-Slave-Catchers’ Mass Convention in Milwaukee urged the formation of a “State League” to “defend our State Sovereignty, our State Courts, and our State and National Constitutions, against the flagrant usurpations of US Judges, Commissioners, and Marshals.” In an 1859 joint resolution, Wisconsin’s legislature insisted that the “rightful remedy” for “all unauthorized acts done or attempted to be done under the color of” the Constitution was “a positive defiance” by the sovereign states.
Though battles over the hierarchy of federal and state power were omnipresent in early-nineteenth-century US law and politics, there are two key differences between those struggles and current debates. First, interbellum conflicts were driven by structural disputes and sectional tensions, whereas those today are rooted in political partisanship.
Second, the constitutional era in which the interbellum clashes took place was fundamentally different from our own. Lincoln’s insistence that the Union was perpetual shaped what the Civil War would mean for him, his contemporaries, and all later generations. At the time, however, his assertion was only a hypothesis; not until the Confederacy’s defeat in 1865 did it become a fact. That is why we should see the history of the early nineteenth century as a cautionary tale. Reviving arguments that almost unraveled the Union is a deadly serious business.