Left: Texas Governor Greg Abbott speaks at a news conference after surveying tornado damage in Perryton, Texas, Saturday, June, 17, 2023. Abbott is expected to sign into law sweeping new powers that allow police to arrest migrants who cross the border illegally and gives local judges authority to order them to leave the country. (AP Photo/David Erickson, File); Right: Migrants wait to climb over concertina wire after they crossed the Rio Grande and entered the U.S. from Mexico, Saturday, Sept. 23, 2023, in Eagle Pass, Texas. Abbott is expected to sign into law sweeping new powers that allow police to arrest migrants who cross the border illegally and gives local judges authority to order them to leave the country. (AP Photo/Eric Gay, File).
Lawsuits are being prepped as Texas Republican Governor Greg Abbott moves forward with the latest anti-immigration measure of what Abbott dubbed “Operation Lone Star.”
Wires, buoys, and jail time
In 2021, Abbott initiated the massive border security effort that has seen Texas install razor wire and a floating barrier of buoys in the Rio Grande, and will next add thousands of Texas state troopers to patrol parts of the state’s 1,254 mile long border with Mexico.
Abbott is poised to sign two bills into law that further the plan he says is necessary to protect Texas from immigrants entering without legal authorization.
The Texas Legislature passed S.B. 3 and S.B. 4 in November and Abbott is expected to sign both into law on Monday.
S.B. 3 allocates more than $1.5 billion for border security measures.
S.B. 4 is a controversial and harsh immigration bill that makes unauthorized crossing of the U.S.-Mexico border a state crime punishable with jail time. It allows Texas police officers, sheriff’s deputies, and state troopers to arrest anyone suspected of illegal border crossing and charge them with crimes ranging from misdemeanors to felonies, then to prosecute and punish with jail time or return to Mexico.
Abbott said in November that he “look[ed] forward to signing Senate Bill 4,” a measure that has been touted by Texas Lt. Gov. Dan Patrickas as “the strongest border security bill Texas has ever passed.”
Opponents of Texas’ harsh policies say that the new measures will result in widespread racial profiling. As with many punitive immigration policies, many argue that communities are made less safe by creating the potential for crime victims and witnesses to fear speaking with law enforcement.
The ACLU has already announced its intent to challenge the law in court.
David Donatti, staff attorney for the ACLU of Texas, said that state criminal laws that authorize jail time for migrants violate core American values.
“We should welcome, not criminalize, families and individuals fleeing persecution,” said Donatti when the laws were before the state legislature.
As Texas guards its own turf, it risks encroaching on that of Congress
Even apart from the law’s substance and any related consequences, there is a glaring legal issue with S.B. 4: the authority to regulate immigration lies with — and only with — the federal government.
The 1952 Immigration and Naturalization Act set out the foundation for current federal immigration law.
Further, the U.S. Supreme Court has spoken on the broad scope of federal immigration power — as well as the essentially non-existent scope of corresponding authority held by individual states. The high court wrote in 1948:
“The Federal Government has broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization … Under the Constitution, the states are granted no such powers; they can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states.”
The Mexican government issued a statement on Nov. 15 that likewise framed the issue of border protection as one between sovereign nations — and not one between itself and the State of Texas.
“The Government of Mexico recognizes the sovereign right of a country to determine the public policies that are implemented in its territory,” read the English-language statement. “Therefore, the Government of Mexico categorically rejects any measure that allows state or local authorities to detain and return Mexican or foreign nationals to Mexican territory.”
Texas’ uncertain future in the courts
Appellate litigation over Texas’ laws is typically heard by the New Orleans-based U.S. Court of Appeals for the Fifth Circuit — the nation’s most conservative federal appeals court that is staffed by half a dozen judges appointed by President Donald Trump.
So far this December, Texas has not fared well in challenges to its immigration policies. The Fifth Circuit ordered Texas to remove its floating barrier of buoys from the Rio Grande and a lower federal court sided with the federal government in a ruling that allowed Border Patrol agents to continue cutting concertina wire that Texas installed on the banks of the Rio Grande.
The Fifth Circuit did, however, put a temporary pause on on the wire ruling while the appeal progresses.
Abbott has repeatedly promised to challenges to S.B. 4 to the Supreme Court if necessary.
Imminent litigation over Texas’ immigration measures will not be the first time courts have addressed a state-versus-federal turf battle over illegal immigration.
In 2012, the U.S. Supreme Court struck down most of Arizona’s S.B. 1070 under the federal government’s “preemptive power” over immigration. Arizona’s law known as the “Support Our Law Enforcement and Safe Neighborhoods Act” allowed local law enforcement to arrest people on “reasonable suspicion” of illegal border crossing.
The case resulted in a 5-3 decision in which the Court ruled against Arizona’s efforts to create its own immigration laws.
“Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law,” wrote Justice Anthony Kennedy for the Court’s 5-3 majority.
The lineup in the Court’s ruling in that Arizona case is notable. Kennedy’s majority decision was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. Justices Antonin Scalia, Clarence Thomas, and Samuel Alito each penned a solo dissent. Justice Elena Kagan recused from the case because in per pre-SCOTUS job as Solicitor General under president Barack Obama, Kagan helped defend the administration’s position against Arizona’s law.
Now, even with Kagan potentially voting against Texas’ law, there is a serious possibility that Thomas and Alito would be joined by conservative justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett for a pro-Texas ruling.
The Court’s liberal justices have gone on record many times in the recent past to oppose hard-line immigration policies, even when implemented by the federal government.
Further, even some of the conservative justices have taken the chance to rule against Texas when it has intruded into immigration matters. Last June, the Supreme Court issued an 8-1 decision penned by Kavanaugh that held Texas lacked standing to challenge the Biden administration’s immigration enforcement priorities. Only Alito opposed that ruling.
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