State Explores Flexing Legal Muscles on Immigration

Julián Aguilar, Texas Tribune, December 16, 2015

Crafted carefully, state laws can be written that would allow Texas to crack down on undocumented immigrants and illegal border crossers without running afoul of the U.S. Constitution, a state attorney told lawmakers recently.

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The guidance comes as Republican lawmakers continue accusing the Obama administration of failing to secure the border, citing the recent influx of undocumented immigrants from Central America into the Rio Grande Valley. The issue was thrust back into the spotlight on Tuesday when Gov. Greg Abbott ordered the Texas National Guard to stay in the Rio Grande Valley despite earlier plans to end its deployment this month.

During a House State Affairs committee hearing last week on border security and immigration, Texas Deputy Attorney General Brantley Starr told lawmakers they have more options than they might think to flex state legal muscle in the traditionally federal realm of immigration enforcement.

Although the U.S. Supreme Court has ruled that “foreign policy and related matters, such as immigration, are one of the few enumerated powers the federal government has,” Starr said states do have some room to work.

“You do have the ability to create state-level offenses that have an immigration element to them as long as they are sufficiently unique,” he said, citing House Bill 11, the Legislature’s 2015 omnibus border security bill.

The bill, signed by Abbott in June, made it a state felony to smuggle someone into the country for pay. Starr said he believes the bill would stand up to a court challenge on Constitutional grounds if one were brought. {snip}

“There were new state-level elements to that offense [in] that you’re taking money in exchange for bringing someone across the border illegally,” he said. “And the addition of the new state-level elements to that offense made it sufficiently unique.”

The new laws are already helping state police apprehend alleged criminals that federal agents might let go, Texas Department of Public Safety Director Steve McCraw told the committee.

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Starr also said he believes state lawmakers can pass a bill outlawing “sanctuary cities” that would withstand a court challenge. The Supreme Court upheld one of four provisions of a controversial Arizona law, SB 1070, dubbed the “show me your papers” bill, allowing police to ask a person if they were in the country legally, Starr said.

But it didn’t take away the power of the federal government to deport the person, which is why it wasn’t struck down.

“That law survived because it could be implemented in a way that ultimately left discretion to the federal government to detain that person and remove them from the country,” he said.

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