DIY border fix? Texas tests limits on immigration policy.

Texas moved this week to give state officials unprecedented immigration powers, setting up a clash with the federal government’s constitutional duty to oversee the issue.

A key impetus: Record numbers of migrants have arrived at the southwest border in recent years. Lately, more than 2 million per year have been crossing illegally, often to request asylum, and landing in a judicial system not equipped to handle the flow. 

On Monday, Gov. Greg Abbott signed a law that will allow state police to arrest immigrants for entering Texas illegally. State judges can punish offenders with fines and jail time, and send them back to Mexico. The law, which is scheduled to go into effect in March, has already drawn a legal challenge. 

The law is part of broader moves by Texas that may increasingly amount to a de facto immigration system. Civil rights groups say the efforts for almost three years have been rife with due process violations and discrimination, while also overwhelming the limited resources of border communities. State officials say Texas needs to reinforce its stretch of the border in the absence of a meaningful federal response.

The new law, known as SB 4, “goes further than any [other] state-level attempt at getting involved in immigration,” says Denise Gilman, co-director of the Immigration Clinic at the University of Texas School of Law.

“It not only creates these new state law crimes for crossing the border, but also sets up this state deportation system,” she says. “That really, as far as I know, has never been attempted before.”

The new legislation is the latest in a series of boundary-pushing steps. Since March 2021, state law enforcement has been patrolling the border and fortifying stretches of the Rio Grande with razor wire and floating barriers. The state has arrested thousands of migrants and either turned them over to federal authorities or funneled them into a dedicated state court system.

Governor Abbott has been blunt in explaining his actions, saying as he signed the latest law Monday that President Joe Biden’s “deliberate inaction has left Texas to fend for itself,” the Houston Chronicle reported.

Arizona’s precedent

This isn’t the first time states have tried to disrupt the U.S. immigration system. In the 2010s, Arizona led the way.

State leaders then were concerned less about border crossings and more about unauthorized immigrants already in the country. Maricopa County Sheriff Joe Arpaio became a national figure for his agency’s focus on seeking to arrest them. The Arizona Legislature enacted SB 1070, commonly known as the “show me your papers” law, which made unlawful residence in the U.S. a state crime and allowed police to detain anyone they suspected of being in the country illegally.

This decade, Texas has assumed Arizona’s mantle. And Texas leaders have been going even further than Arizona did.

Texas has challenged federal immigration policies in the courts, but “Abbott has said that’s not sufficient,” says Muzaffar Chishti, a senior fellow at the Migration Policy Institute. 

This new phase began with Operation Lone Star. In 2021, Governor Abbott deployed state troopers and the Texas National Guard to the border with orders to combat illegal drug trafficking and immigration into the state. The initiative has resulted in over 394,000 apprehensions and over 29,000 felony charges, the governor’s office reported in July.

But the state’s actions have hit speed bumps in the courts. A federal appeals court this month ordered Texas to remove the floating barriers the state installed in the Rio Grande (the state has said it will appeal the court’s ruling), and the state police recently told its officers to stop separating the migrant families they arrest, amid legal concerns. These arrests have often led to trespassing charges – crossing the border illegally hasn’t been a state crime – but prosecutors have often lacked the resources or will to pursue them.

This legal reality – that states have few immigration enforcement powers – is what Texas is hoping SB 4 will change.

Courts have long rejected state efforts to seize immigration enforcement power, however. There is a strong national interest in having a uniform national immigration and foreign policy, courts have said. In a lawsuit filed this week, the American Civil Liberties Union and the Texas Civil Rights Project claim SB 4 is unconstitutional and preempted by federal immigration law.

One thing that would help lower the number of migrants coming to the southern border, experts say, is reforming America’s asylum system. With asylum-seekers having to wait years in the United States before their cases are resolved, there’s a strong incentive to cross the border and request asylum. Operation Lone Star, and now SB 4, do nothing to tackle that problem, says Victor Manjarrez, a former Border Patrol sector chief. But the policies are keeping a national spotlight on border issues.

“I don’t see how [SB 4] is going to impact the flows,” he adds. But “most Border Patrol agents love the things [Texas] is doing.”

“It’s not that it’s effective necessarily. It’s that the agents are thinking, ‘Man, someone cares.’’’

What next?

A majority of Texans support the state’s actions as well, according to the Texas Politics Project. But SB 4 has made some Texans fearful that they or their family members, even if they’re lawful residents, could be charged with violating the immigration law, says Jennefer Canales-Pelaez, a policy attorney and strategist at the Immigrant Legal Resource Center.

Whether federal courts will allow SB 4 to take effect is unclear. In 2012, the U.S. Supreme Court overturned most of Arizona’s SB 1070 law because it conflicted with federal immigration law. Since then, including in a case decided earlier this year, the justices have reiterated that the federal government has broad authority over immigration enforcement.

The Arizona case “didn’t get close to this idea of creating a state-level deportation scheme,” says Professor Gilman, at the University of Texas at Austin. “I don’t see how that can at any level survive constitutional scrutiny.”

But if the case makes it to the Supreme Court, she adds, the justices “may [have] some new understanding about where exactly the line should be drawn between federal and state activities.”