Can Texas enforce its own immigration law?

Texas is taking immigration law into its own hands.

Gov. Greg Abbott this week signed a bill, SB 4, that gives police in the Lone Star State the authority to arrest undocumented migrants — who would then either be prosecuted or shipped back out of the country. For Abbott, a Republican, it's another opportunity to challenge President Joe Biden's handling of border security issues. The president's "deliberate inaction has left Texas to fend for itself," the governor said at the bill-signing ceremony in Brownsville.  

But the law is also potentially "an earthquake for the legal status quo," The Texas Observer reported. Why? Because the federal government typically has authority over immigration and border issues in the United States. "What the Texas Legislature has passed is unprecedented in that it is a complete override of the federal government's authority in immigration," said Adriana Piñon of the Texas ACLU. 

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This means the new law has "set the stage for another showdown" over who gets to control America's borders, The Hill reported. The Supreme Court in 2012 struck down an Arizona law that let it arrest migrants. But the current 6-3 conservative majority on the court may have different ideas. Abbot is eager to test the proposition. Texas, he said, would "welcome a Supreme Court decision that would overturn the precedent set in the Arizona case."

What the commentators said

Enforcing the new law is going to be messy, Jeronimo Cortina and Samantha Chapa argued at The Houston Chronicle. It will require officers to ask residents about their immigration status, making it likely they will "disproportionately target ordinary Americans based on the color of their skin and the presumption of their immigration status." The real purpose of the new law, though, is politics. "Immigration as a campaign issue, in an era of extreme partisan polarization, works well for both Republicans and Democrats."

The law "doesn't have a prayer of actually solving the crisis," Conn Carroll wrote at The Washington Examiner. Tougher border enforcement "sounds great on paper," but the devil is in the details: "Texas has no way to force immigrants to go back to Mexico." The state doesn't have an agreement with Mexican authorities to accept custody of arrestees. More than that, it would take "a massive amount of resources" to arrest all the migrants flowing through the state. It's going to take federal action to solve the problem. 

The federal government "may have the better legal argument" against the new Texas law, Andrew R. Arthur blogged for the Center for Immigration Studies, a "low immigration" think tank. But Abbott may have the better "factual" case: "Voters are increasingly dissatisfied with the chaos at the Southwest border." Which means that if the federal government does challenge Texas in court, it won't just be the new law on trial. "The president's immigration and border policies will be at issue as much as the language of SB 4 itself."

What next?

That challenge has already arrived. CNN reported The American Civil Liberties Union, the ACLU of Texas, and the Texas Civil Rights Project have already filed a lawsuit asserting that "immigration is a quintessentially federal authority." And the White House is also contemplating action, though an administration spokesperson made it clear President Biden isn't happy with the Texas effort. The law, Karine Jean-Pierre said, "will not, and does not, make the communities in Texas safer." Mexican President Andres Manuel Lopez Obrador agreed, this week calling the law "inhumane." "The foreign ministry is already working on the process to challenge this law," he said.

Despite the Arizona precedent, though, the Biden administration might face challenges if it tries to stop the law. The Hill reported this week that a federal appellate judge had blocked a federal challenge to another Texas effort — the state's placement of razor wire barriers at the border.

The law takes effect in March.