If it survives in court, Texas’ immigration law could upend immigration enforcement nationwide

By Alejandro Serrano, The Texas Tribune

Oct. 24, 2024

"If it survives in court, Texas’ immigration law could upend immigration enforcement nationwide" was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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This story is part of a collaboration with the Associated Press and FRONTLINE, the PBS series, through its Local Journalism Initiative, which is funded by the John S. and James L. Knight Foundation.

EAGLE PASS — As a mariachi band played their final number, several kids lined up near a public park along the Rio Grande to whack an orange piñata. It was made to look like the floating barrier that Texas officials put in the middle of the river nearby — a string of orange buoys separated by saw blades meant to deter migrants from crossing the border.

The kids were part of a gathering on a recent sunny morning to protest the state of Texas seizing their park as part of its unprecedented, multibillion-dollar and ever-growing border security operations.

Shelby Park, named after a Confederate general who refused to surrender near the end of the Civil War, once was filled with family gatherings and soccer games. Now it’s a staging area for Texas National Guard soldiers and state troopers focused on keeping out migrants.

This morning, the protesters couldn’t even get into the park; the entrance gates were closed.

“We’re here because we want our park back,” Yocelyn Riojas, a protest organizer, said from a stage facing Shelby Park. “We want to fight for our community and for human rights.”

Texas state officials took over Shelby Park in January, lining its river banks with empty shipping containers and reams of razor wire. The state told federal immigration authorities they could neither cut the wire nor patrol the area.

The park takeover against city wishes came one week after the U.S. Department of Justice sued Texas over Senate Bill 4, a groundbreaking 2023 law allowing Texas police to arrest migrants for illegally entering the state.

The moves are part of Texas’ crackdown to secure the border it shares with Mexico — an unprecedented challenge to the federal government’s long standing authority over immigration law.

Texas has justified its confrontations with a seemingly simple argument: It must and can, thanks to the U.S. Constitution.

State leaders argue that the federal government has failed to enforce immigration laws and created a catastrophe along the 1,254 mile border. They say it violates part of the Constitution that says the federal government must protect states from invasion.

“Texas has the right to defend itself because of President Biden's ongoing failure to fulfill his duty to protect our state from the invasion at our southern border,” Gov. Greg Abbott said earlier this year.

Until recently, record-setting numbers of undocumented migrants were coming into Texas, and state leaders have claimed that some were criminals and terrorists. They point to the nation’s ongoing fentanyl crisis and anecdotes of migrants accused of crimes to defend the border operations and SB 4. Numerous studies have debunked claims that increased illegal immigration leads to more violent crime.

SB 4 would make it a state misdemeanor to illegally cross the border from Mexico into Texas, empower Texas peace officers to arrest undocumented immigrants and require that a state magistrate judge order the person to leave the U.S. to Mexico in lieu of prosecution. The misdemeanor is punishable by up to six months in jail. Repeat offenders can be charged with a second-degree felony, punishable by up to 20 years in prison.

For now, the law is on hold as the DOJ lawsuit winds through federal courts, but if Texas succeeds in defending it, legal scholars say it would result in two immigration systems — one federal and one in Texas — and open the door for other states to write their own immigration laws.

Interviews with a dozen constitutional law scholars and pro- and anti-immigration advocates suggest that the implications could reshape the nation’s immigration system.

Frank Bowman, a law professor at the University of Missouri, argues that immigration is not an invasion. “Texas and other states are claiming a really extreme version of the notion that states are essentially sovereign, and that the federal government can go whistle,” he said.

Militarization of a city

These days, few, if any, migrants can be seen on the Mexican side of the Rio Grande from Shelby Park.

Before the recent dip — following stepped up enforcement efforts in Mexico and new asylum restrictions in the U.S. — immigration was near all-time highs. Border Patrol agents in the Del Rio sector, which includes Eagle Pass, recorded more than 70,000 migrant encounters in December. In September, that number had dropped to 6,932 encounters.

To control the flow, Texas deployed the state National Guard along the river that marks the border and installed the floating barrier — without consulting the federal governments on either side of the international waters.

And in Shelby Park, which federal agents had used as a main staging area to process thousands of migrants who crossed the river, Texas has now blocked Border Patrol’s access to asylum-seeking immigrants.

In June 2023, Eagle Pass Mayor Rolando Salinas agreed to declare Shelby Park private property at the state’s request so state troopers could arrest the migrants who routinely crossed through the park for trespassing. He and the city council later rescinded the agreement after residents complained that he had acted without input from his constituents or fellow council members.

The about-face by the city didn’t stop the state from closing the 47-acre park and taking it over indefinitely; Salinas said it was “not something that we asked for as a city.”

Eagle Pass residents who used the park to access the river and gather for community events have pressured the state to release the park back to the community, to no avail. Those calls were renewed at the recent demonstration in front of Shelby Park.

Jose Corpus, a 52-year-old local, smiled as he walked toward the kids beating the piñata, shaped like three orange buoys.

To Corpus, the peaceful protest was one of the few tools that locals have to draw attention to the state’s militarization of their city and what feels like a lack of local control.

“We have to represent ourselves,” Corpus said. “It’s a feeling of frustration, helplessness and disappointment, too — that we can’t get decent treatment.”

A new state law

Texas had already entered uncharted territory by the time the Legislature passed SB 4 last year. Shortly after President Joe Biden took office, Abbott launched Operation Lone Star, a massive state mission to reinforce the Texas-Mexico border. Beyond the Texas National Guard’s deployment, state troopers began arresting migrants on state crimes like smuggling and trespassing, and the state installed miles of concertina wire on the border.

To date, Texas has spent $11 billion on the effort.

Still, SB 4 sparked fierce debate, and lawmakers struggled to pass it. Some opponents claimed it was unconstitutional and would lead to racial profiling while others pushed for an even tougher approach. The Legislature did not send the bill to the governor until November, following a fourth special legislative session after the end of the regular session in May 2023.

Soon after, Oklahoma and Iowa passed similar laws; Arizona voters will decide in November whether to adopt a ballot proposal that mirrors the Texas legislation. In Oklahoma, Sen. Greg Treat, who carried the legislation in the state’s upper chamber, echoed Texas’ argument that his state needed the new law because the federal government doesn’t adequately enforce immigration laws and has failed Americans. Iowa has defended its law in courts by arguing that it simply mirrors federal laws.

Denise Gilman, a law professor who directs the Immigration Clinic at the University of Texas at Austin, said that if the laws hold up in court, they could spark chaos as state and federal officers pursue the same people using different laws. For example, she said, what would happen if the federal government wants to deport a migrant back to their home country and a Texas state judge has ordered the same person be expelled at the nearest port of entry?

“There's just going to be a mess,” Gilman said.

Kristie De Peña, director of immigration policy at the Niskanen Center, a think tank that bills itself as politically independent, says allowing states to criminalize illegal immigration is a recipe for racial profiling by police, accidental detention of U.S. citizens and lots of legal challenges. “We're gonna see a lot more pressure on local law enforcement to handle things outside of their general jurisdiction when they are already struggling,” she said.

If courts accept Texas’ argument that drug cartel violence and mass migration amount to an invasion, border states will be empowered to declare war without congressional approval, said Ilya Somin, a constitutional law scholar at George Mason University.

“That suggests an ‘invasion’ must be the kind of organized assault that would normally justify full-scale war in response, including sending troops to attack and occupy the country from which the invasion originated,” Somin has written.

States have invoked the invasion argument before, but for decades, lower courts have left the issue unsettled. Law professors predict that SB 4 is headed to the U.S. Supreme Court, which has already issued a precedent-shattering ruling on abortion rights, a similar state-versus-federal clash in which the court gave states broad new authority over what had been a constitutional right.

November’s elections may very well determine the future of Texas’ showdowns with the federal government. Should Donald Trump return to office, perhaps no state will be better positioned to help him achieve his ambitious anti-immigration agenda, which calls for sweeping raids and mass deportations by U.S. National Guard troops and local police.

The former president has pointed to the Eisenhower administration’s 1954 mass deportation program — which used a derogatory name for immigrants and paired federal and local law enforcement to arrest migrants — as a model for his intentions.

As Trump, Abbott and other conservative legislators often say, “Every state is a border state.”

But, experts said, Texas already has changed the politics of immigration nationally.

“Texas’ place in this whole fight is so unique,” said Muzaffar Chishti, director of the Migration Policy Institute office at New York University’s School of Law. “It’s like looking at the whole map now to redefine the role of states in immigration policy.”

Biden’s victory triggered Texas pushback

This confrontation has been building since Biden took office in January 2021 and Abbott and Attorney General Ken Paxton emerged as his chief antagonists at the state level.

Biden immediately began trying to unwind Trump’s border policies, starting by halting Trump’s signature project, the border wall, on his first day in office. Just as quickly, Texas officials began to challenge him. They poured resources into building border walls, and began busing tens of thousands of undocumented migrants to cities run by Democrats. Paxton repeatedly sued to block Biden’s immigration policies — often filing suits in federal courts headed by Trump-appointed judges.

In press conferences, courtrooms and letters to the president, Abbott and Paxton — who both declined interview requests for this report — have defended Texas’ actions by blaming the Biden administration for failing to protect Texans and Americans amid record-high migration.

And when the state Legislature approved SB 4, Abbott and other Texas Republicans said the state had legal cover to override the feds’ jurisdiction over immigration: The “invasion clause” of the U.S. Constitution, which says states can wage war without congressional approval only if they are “actually invaded.”

The state claims that the clause grants it the authority to take unprecedented measures because it was being invaded by undocumented immigrants and drug cartels.

Even before the bill was filed, a lawyer for Paxton’s office said publicly that the office welcomed proposals that could lead to a Supreme Court case that would overturn a pivotal 2012 ruling affirming that immigration enforcement was the feds’ responsibility. One of the bill’s author’s has said repeatedly that was not his aim.

The invasion argument

In court, Texas’ defense of SB 4 is twofold: The law does not conflict with existing federal law and the state is being invaded.

“You do obviously have entry into our territory that's not theirs. You have them violating laws, and then you have them using hostile means, whether it's violence or threats of violence, or coercion or other nefarious approaches,” said Brian Phillips of the Texas Public Policy Foundation, a conservative think tank based in Austin. “There's more than enough evidence to meet the legal definition of invasion.”

More than a dozen Republican governors who support Operation Lone Star have publicly endorsed Texas’ argument that it has a constitutional right to defend itself at the border.

Somin, the George Mason University law professor, said that the invasion argument “has sweeping and dangerous implications.”

“What Vladimir Putin is doing to Ukraine is an invasion. What Hamas did to Israel is an invasion,” he said in an interview. “Migrants crossing the border in search of opportunity is not an invasion.”

Yet Texas’ argument is not new.

In the 1990s, numerous states — including New York, New Jersey and California — unsuccessfully tried invoking the invasion clause in similar clashes with the federal government over immigration. The states, which at the time were home to more than half of undocumented persons in the country, each raised different issues. Lower courts mainly ruled that the question was a political one they could not consider. But three appellate courts ruled at the time that illegal immigration did not amount to an invasion.

In 2010, Arizona passed Senate Bill 1070, a law allowing police to check the immigration status of anyone they stopped or arrested if they had reason to suspect the person was in the country illegally. The law also criminalized failing to carry alien registration paperwork — which was already required under federal law — or seeking authorization to work.

Two years later, the U.S. Supreme Court upheld the provision requiring authorities to check the immigration status of detained people they suspect to be undocumented but struck down the other provisions; Justice Anthony M. Kennedy wrote that while Arizona might have frustrations caused by migration, the state did not have the right to implement policies that undermined federal law.

One of SB 4’s sponsors, state Rep. David Spiller, a Republican from Jacksboro, said he joined staffers from the offices of Abbott, Paxton, Lt. Gov Dan Patrick and House Speaker Dade Phelan in reviewing Arizona’s SB 1070 and the high court’s majority and dissenting opinions.

In an attempt to ensure the state law didn’t conflict with federal law, Spiller said lawmakers copied the language of federal immigration laws. He compared it to other state criminal laws that are intended to supplement federal law.

“It's not uncommon for Texas, or for any state, to overlap with penal code provisions, criminal provisions that track existing federal law,” Spiller said in a recent interview. “I'm sitting at home now believing that it’s completely constitutional.”

Making the invasion argument as well to defend the law, Spiller said, is “a kind of a belt and suspenders approach.”

Even some conservatives have said it’s a stretch and could have major consequences.

“Imagine if blue states took Texas’ approach to constitutional interpretation on other issues,” John Yoo, who worked at the Department of Justice under George W. Bush, wrote in a 2022 essay that raised alarms about Abbott’s argument. Yoo, who wrote many of the memos defending torture by U.S. forces related to the War on Terror, now works as a professor at UT-Austin’s School of Civic Leadership.

“Governors of California and New York might claim that global warming qualifies under [the invasion clause] as an imminent danger and could expropriate facilities or companies, which the laws of war permit during hostilities,” he wrote.

A blueprint by former Trump officials

The idea for the invasion argument, in tune with invasion rhetoric increasingly used by Republicans, had percolated in right-wing legal circles for years before Texas adopted it.

After Abbott issued a border-related disaster declaration in June 2021, a blog post authored by two former Department of Homeland Security officials in the Trump administration and a former adviser praised the move and suggested the invasion idea.

“Texas, as a sovereign state, has the inherent authority to protect its citizens and enforce its own borders,” the three wrote of the invasion clause. “Any so-called ‘constitutional crisis’ over Texas taking common-sense steps to protect its own people pales in comparison to the ongoing and real constitutional crisis of a president abandoning his duty to secure our nation’s borders and protect its people.”

One of those writers, former acting director of U.S. Citizenship and Immigration Services Ken Cuccinelli, in October 2021 laid out a “three-pronged strategy to secure the border” by using governors, attorneys general and state legislatures — and simultaneously provoking a constitutional conflict with the federal government over immigration enforcement.

The plan presented by Cuccinelli — an immigration hardliner whose appointment as CIS head was ruled unlawful by a federal judge — begins with Texas declaring an invasion.

“Aggressive policy action, without hesitation, must then follow,” he wrote. “State leaders should hold the same regard for the approval and permission of federal officials that those same federal officials hold for the rule of law they have abandoned.”

When the plan was released, a Biden administration official told the New York Post, “enforcing immigration laws is under the purview of the federal government, so state authorities doing it or taking part in immigration enforcement would be illegal.”

Cuccinelli insisted the plan did not amount to immigration enforcement.

“This is resisting invasion,” he said. “That’s what this authority is.”

Under the plan, governors should first activate their state’s National Guard — as Abbott had already done — followed by the creation of a pact with other states, and then executive orders from governors “outlining the absolute failure and unwillingness of the federal government.”

Meanwhile, he wrote: “The goal of the state attorneys general should be to facilitate the beginnings of case law when it comes to the federal government’s abrogation of its responsibilities to protect border states from invasion.”

Cuccinelli pointed to a role model for states’ top civil lawyers: Paxton.

At the same time, Cuccinelli wrote, it would be up to state legislatures to “go on offense” by passing their own immigration policies.

“It is critical that state lawmakers pass laws that protect their communities with a citizens-first agenda that sends a decisive message to illegal immigrants and federal officials alike,” he wrote, listing 10 policy ideas.

A year after the blog post, in November 2022, Abbott invoked the invasion clause in a letter to Biden, writing that the clause enabled “the State of Texas to protect its own territory against invasion by the Mexican drug cartels.”

When Texas state lawmakers convened the following January, one of the legislative priorities that Abbott identified was well underway to becoming reality: Securing the state’s border with Mexico.

A laboratory for immigration policies

The lawsuit over SB 4 is currently before a panel of judges from the U.S. Fifth Circuit Court of Appeals, who will decide whether to overturn a lower court’s injunction that stopped the law from going into effect.

The court is among the most conservative in the country. While it often advances conservative ideas, the court also often sees its decisions overruled when they get to the U.S. Supreme Court.

However the appeals court rules, legal experts expect, either Texas or the federal government is likely to ask the Supreme Court to weigh in on the constitutional issues in dispute.

Then, the decision will be up to a court that looks very different from the court that shot down Arizona’s law in 2012.

Two justices who dissented in the Arizona case — Clarence Thomas and Samuel A. Alito Jr. — are now part of a 6-3 conservative supermajority that has already overturned historic precedents surrounding abortion rights and presidential immunity.

No matter what happens in the courts, Texas has positioned itself to be a laboratory for new immigration policies if Trump returns to the White House, said De Peña of the Niskanen Center in Washington, D.C.

“Everything is going to start there,” De Peña said. “It’s going to be the front row for kind of looking at how a lot of these policies work on the ground.”

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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2024/10/24/texas-immigration-law-sb4-supreme-court-migrants-border/.

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