Texas governor's move sets up showdown with feds

A new border law signed by Texas Gov. Greg Abbott (R) picks a direct fight with federal authorities on a key constitutional question: Who gets to control Texas's border, which is more than 1200 miles long? 

To most legal scholars, this is not a question at all: They hold that the authority rests with the federal government, a view most recently upheld by the Supreme Court in 2012 after Arizona sought to allow state police to check residents' immigration status.  

El Paso County and the American Civil Liberties Union cited that Supreme Court decision in a Tuesday lawsuit challenging the Texas law's constitutionality, asserting "the federal government has exclusive power over immigration."  

But in the years since the shuttering of official federal crossings early in the COVID-19 pandemic led to a spike in undocumented border crossings, Texas Republicans have asserted that the border is in crisis — and that only they can fix it.

By passing the new law, they've set the stage for another showdown over where authority on the issue lies — a showdown Abbott, at least, argues Texas can and should win.

"President Biden’s deliberate inaction has left Texas to fend for itself," Abbott said in a statement Monday. 

"Today, I will sign three laws to better protect Texas — and America — from President Biden’s border neglect.” 

The new laws, the governor argued, "will help stop the tidal wave of illegal entry into Texas, add additional funding to build more border wall, and crack down on human smuggling.” 

The first on that list is also the farthest reaching. Senate Bill 4, passed during a previous special session of the state Legislature this fall, makes crossing the border into Texas outside an official port of entry a criminal offense — and one with a potential penalty of 20 years in prison.  

Texas has been tiptoeing into criminalizing migration. The state has arrested more than 30,000 migrants since the beginning of its border interdiction operations in 2021 on criminal trespassing charges — creating what border legal organizations call “a shadow criminal legal system.” 

But the new law goes even further. By giving state police officers the right to arrest migrants, and state judges the right to sentence them, that law marks an apparent incursion into a policy area presided over by the federal government — which has long reserved unto itself the right to regulate the nation’s borders.  

In Arizona v. U.S., the Supreme Court upheld that right, ruling 5-3 that federal law overruled — or "preempted" — state authority on a host of laws related to the border. 

That 2012 decision struck down an Arizona law that made it a state-level crime for migrants to be in the country unlawfully — arguing that the law was an unconstitutional foray into federal authority.

In the majority opinion, Justice Anthony Kennedy laid out a clear vision of federal authority on border policy — which Abbott is now challenging. 

“The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens,” Kennedy wrote. “The federal power to determine immigration policy is well settled.” 

This was important, he added, because "it is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States.” 

Abbott told reporters that he believed the new law was constitutional — but that he welcomed a challenge.

"We think that Texas already has a constitutional [right] to do this, but we also welcome a Supreme Court decision that would overturn the precedent set in the Arizona case," he said. 

Conservatives argue he has a shot. The Supreme Court ruling in U.S. v. Arizona leaves open a big opportunity for states to step into immigration policy, wrote law professor John Blackman of the South Texas College of Law Houston. 

In the libertarian magazine Reason, Blackman pointed to one of Kennedy’s caveats in the decision: that that case didn’t require the court to decide “whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law.” 

That means he left open “the question of whether Texas can detain aliens who violated federal immigration law,” Blackman wrote. “The Court could uphold Abbott's order without overruling Arizona. But this holding would undermine the weight of Arizona.” 

Denise Gilman, a law professor at the University of Texas, argues that reading is exactly backwards, however.

Justice Kennedy, she said, was arguing that the court didn’t need to take on the problem of states pursuing their own immigration policy — or their own detentions — because the legal case was so obvious. 

“Arizona was quite clear that the regulation of immigration law should not be done by state level authorities unilaterally, that state level authorities can cooperate with federal immigration authorities but that they shouldn't be engaged in immigration enforcement unilaterally,” she said. 

“And that’s exactly what [Senate Bill 4] asks state authorities to do."

Gilman pointed to what she called a particularly egregious part of the law: the fact that it effectively allows the state to conduct deportations.  

Under the new law, she said, migrants picked up by state police and charged with unlawful entry have an out — they can agree before a state magistrate to leave the country in exchange for charges being dropped.

If they don’t leave — or if Mexico doesn’t take them — they can be charged with a felony that carries up to 20 years in prison. 

This method of driving migrants to leave the county “is another whole level well beyond what even the court in Arizona was looking at,” she said. "It's been generations of constitutional law that ... made clear that the federal government is exclusively charged with decisions about deporting noncitizens from the United States." 

The new Texas law is part of a broader package of legislation signed into law by Abbott during the special sessions of the state Legislature this fall, including other measures that may step into areas traditionally governed by federal authority. 

First, there is $1.54 billion in funding for Texas to run its own border patrol and build a border wall. 

Second, a bill passed this special session — confusingly also called Senate Bill 4 — prescribes harsh penalties against smugglers. That law targets both those moving people, for whom it sets a 10-year mandatory minimum sentence, and those moving or transshipping drugs such as fentanyl. 

These measures also give added funding and teeth to another sweeping suite of bills that state Republicans were able to pass during the normal 2023 Texas legislative session. 

Those laws allow the state police deployed on the Texas border to search and arrest migrants, as well as to coordinate with police forces in other states taking their own steps into border enforcement — without asking for congressional approval. 

In addition to pushback over its constitutionality, the law imposing criminal charges on undocumented border crossers has raised concerns about human rights and potential unintended consequences. 

Border civil society groups such as the Border Network for Human Rights were quick to condemn the bill, which they argued would be used to target families in communities along the border. 

The bill “will only further increase the human and civil rights violations currently being committed and drive hundreds of mixed-status families, Texans of color, immigrants and refugees further into the shadows,” said Fernando Garcia, executive director of the Border Network for Human Rights. 

Abbott “has left us no choice but to resist,” Garcia added. 

As a rhetorical justification for the law and the others in the package, the Texas Republican Party has pointed to the wave of overdose deaths from fentanyl — something Abbott cited in a 2022 executive order calling Mexican drug trafficking organizations "foreign terrorist organizations.” 

The Texas government has called on the Biden administration to join them in this designation, which would open up broad powers to freeze cartel assets and “allow prosecutors to pursue tougher punishments against those who provide material support to the cartels.”  

The federal government is reportedly considering making such a move.  

However, since hitting a peak in February 2023, fentanyl seizures had by October fallen by half amid Homeland Security interdiction operations such as operations Blue Lotus and Artemis. 

Encounters at the border, meanwhile, continued to rise for part of the same period before they, too, began falling in recent weeks — although some reports suggest they have been spiking again in December.  

As the third Texas special session began in October — with an official mandate — the U.S. Customs and Border Protection (CBP) announced that its contact with migrants in the space between official crossings had just been at an all-time high, with nearly 220,000 encounters. 

To explain this number, CBP pointed to a world experiencing global levels of migration not seen since the great refugee upheavals following World War II — a conflict that left altered borders, ruined states and rising ethnic nationalism across Europe and Asia. 

CBP noted that many of the encounters at the U.S.'s southern border were with refugees from Venezuela — a longtime target of conservative criticism whose crashing economy and authoritarian government have propelled nearly a quarter of the country's population to leave in less than a decade. 

Mexican citizens also crossed into the U.S. in record numbers, many fleeing increased insecurity amidst fighting between criminal groups in the western states of Guerrero and Michoacan. 

The new law puts many of these people in a difficult situation, Gilman said.  

A Venezuelan or Central American person caught by state police on the border can agree to “self-deport” to Mexico under Senate Bill 4. 

But Mexico is not obligated to take them, and if it doesn’t, they then become candidates for felony charges under the new state law, she said. 

Mexican president Andrés Manuel López Obrador, for his part, has vowed to fight the law, saying Tuesday that the Foreign Ministry is already working on mounting another challenge against it.

As the Texas session proceeded this fall, numbers of border patrol encounters were falling — particularly in Texas.

A report on October crossings found a two-thirds drop in the number of Venezuelans specifically coming into the U.S. without documentation, and a 14 percent drop compared with the previous month. 

That fall was particularly dramatic in Texas, where migrant encounters with border patrol fell drastically in the state's most popular crossing points — dropping by around half in the El Paso and Del Rio sectors compared with the previous year. 

The decline seems to be largely a result of an agreement worked out at the federal level, as the Biden administration signed a deal with the Venezuelan government to resume deportation flights. 

With federal deportations in full swing — the CBP boasted in October that it had deported more people in four months than any previous fiscal year — a Washington Office on Latin America (WOLA) report found that many Venezuelans have opted to “wait and see,” rather than risk being sent home after a grueling overland journey. 

These actions, and the declining number of both fentanyl seizures and undocumented crossings, appear to contrast with the vision of federal weakness on border enforcement that Abbott and other Texas Republicans have promoted as justification for Texas's new laws.  

But border crossings are expected to increase again, the WOLA report found, driving further confrontations between the Texas state authorities, northbound migrants and the federal government. 

“This drop will probably be short-lived as conditions in the country remain dire and Venezuelans considering migration realize that the real probability of aerial deportation is slim,” the report found. 

Some conservatives have argued that the full suite of Texas laws — the $1.54 billion for new border walls, the more stringent penalties — effectively mean Texas is paying a lot of money for policies that strengthen and fund the very criminal organizations the state says it wants to combat. 

Immigration restrictions gives cartels a lucrative source of income, David Bier of the Cato Institute told Congress in February: They can charge immigrants for their help overcoming the obstacles to cross into the U.S. without documentation.

And aside from the added danger the policies are creating, Gilman said, “It just isn’t working.” 

Operation Lone Star, Abbott’s border initiative, "has been in effect for several years now, along with really restrictive federal border policies," she said. "And we're seeing the numbers continue to rise.” 

The reason for that, she said, is that migrants aren't drawn to the U.S. by its border policies, lenient or otherwise.

“What is making the decision, was making the decision, is conditions in their home country,” she said. "And right now we're seeing massive forced displacement around the world."