Texas' illegal entry law will test states' powers on immigration, border enforcement

As Republicans across the country continue their condemnation of President Biden's border policies as "out of control," one red state – Texas – continues its efforts to take immigration enforcement matters into its own hands.

Gov. Greg Abbott launched a controversial state-led, border security effort called "Operation Lone Star" in 2021. Since then, Texas has installed razor wire, a floating barrier in the Rio Grande, and added thousands of Texas state troopers and National Guard soldiers to patrol parts of the state's 1,254 mile long border with Mexico.

But it hasn't stopped there. The Texas Legislature recently passed a new law that makes it a state crime to enter Texas illegally from a foreign country. The measure will make it easier for state and local law enforcement to arrest and prosecute people who cross the border from Mexico.

Immigration rights groups and Democrats in the state plan to file suit. They say the law oversteps state authority, will lead to de facto racial profiling and make all people of color targets for police regardless of their immigration status.

The law, Senate Bill 4 sponsored by state Sen. Charles Perry, a Lubbock Republican, makes unauthorized entry a class B misdemeanor on first offense. The charge would increase to a felony depending on the migrant's criminal history, including whether they had been convicted on a prior illegal entry charge. The legislation also permits a judge or county magistrate to order the migrant returned to a port of entry.

Republican supporters of the law, which is expected to be signed by Gov. Abbott, point to the near-record number of apprehensions of migrants on the state's southern border under Biden as proof that Texas needs to step in to fill the gap and protect its own residents. The law was passed the same week U.S. Customs and Border Protection released statistics showing unauthorized crossings in October totaled about 189,000 for the month.

"The problem with the open border has created, as we've heard numerous times throughout this session, cartel enterprise, terrorist infiltration, fentanyl crises, [and] human smuggling where people are treated as commodities," Sen. Perry said.

Marisa Limón Garza, executive director of the El Paso-based Las Americas Immigrant Advocacy Center, says mixed-status families, where at least one member is undocumented, could be splintered because of the law's statewide application. That means a police officer now doesn't necessarily need to see a person cross the Rio Grande to question or detain them.

"This is really going to potentially rip families apart. This is just dangerous for health and well-being," she says. Even though it's still unclear how each municipality will enforce the law, Garza believes it will certainly affect public safety in border communities.

"It doesn't actually have to be an actual practice in order for it to have a chilling effect in communities and to affect community policing," she says. "All it needs to have is that specter of violence, that threat that will cause harm."

The law is sure to test the limits of state action on border enforcement. Immigration law experts argue that Texas is exceeding its authority because immigration and deportation procedures have long been the purview of the federal government, not the states.

David Donatti, an attorney with the American Civil Liberties Union of Texas, says that while states generally have a lot of freedom to enact laws that affect domestic policy, immigration matters fall outside that scope.

"The state of Texas can pass its own laws about marketing tobacco products, for example, about how to regulate Medicaid, for example, about traffic laws. So these are traditional health, safety and welfare of residents of a state which is traditionally the prerogative of the states," Donatti said. "Immigration controls, deportation absolutely are outside of that window of what the states are usually free to legislate."

More than two dozen former immigration judges have also decried the new law. In a statement published mid-November the judges, who were appointed by, and served under, Democrats and Republicans, said the bill "should offend those who treasure our constitutional protections." They reiterated that migrants, whether in the country legally or not, have a right to certain protections and the right to seek asylum in the United States.

"The proposed Texas legislation, which would allow a state court magistrate judge to issue a removal order, is not lawful. Immigration is plainly a federal function. State legislators cannot enact immigration laws for the same reasons that the United States Congress cannot enact Texas state legislation," they wrote.

Despite those claims, Republicans in Texas are hopeful that the conservative majority on the U.S. Supreme Court will at least reconsider a 2012 ruling that affirmed immigration is mainly a function of the federal government. That's if they consider the case at all, which the Texas House sponsor of the bill said isn't guaranteed.

"It is not in conflict with federal law, it is not preempted by federal law and Texas has the Constitutional right, duty and authority to protect its own borders," state Rep. David Spiller, R-Jacksboro, told reporters in November.

Lawmakers have also heard from local sheriffs who oppose the bill because of the costs they will incur after it goes into effect. Smith County Sheriff Larry Smith testified before a Texas House committee that every region will shoulder the burden because of the bill's statewide application.

"Every county jail in the state of Texas could be impacted by these unlawful presence arrestees," said Smith, who is also the president of the Sheriff's Association of Texas.

State Sen. César Blanco, Democrat-El Paso, said his county determined it would need to build a new detention facility with hundreds of beds to have enough space for immigrants prosecuted under the bill. That cost will be shouldered by the county because the law does not require a reimbursement from the state.

"[That's] at a cost of $162 million and $60 million annually, just to maintain the operations, and the detentions and the prosecution and the indigent defense and court costs," Blanco said during a debate on the floor of the Texas Senate.

The new law would go into effect three months from now.

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