How a Texas Law Could Upend Immigration Enforcement Nationwide

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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.

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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, state 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. {snip}

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.

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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.

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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.

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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 Supreme 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.

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